1. ' This is an application in revision against the judgment and decree of learned Additional District Judge, Sargodha, dismissing appeal against a decree of learned Civil Judge Shahpur, which in turn had decreed the plaintiff's suit for setting aside of consent decree passed in pre-emption suit on 18-3-1976.
2. ' Relevant facts for the purpose of Civil Revision briefly stated are that 61-3/4 kanals of land at mauza Lakhiwal, in Tehsil Shahpur of District Sargodha belonged to Muhammad Afzal and Muhammad Aslam sons of Hayat Muhammad. By Mutation No,3339, sanctioned on 18-11-1974, they sold it to Sardara son of Gamoon for a consideration of Rs,35,000. Sher Muhammad claimed pre- emption in respect of this sale. On 30-9-1975, he instituted a suit for pre-emption against the vendee in the Civil Court at Sargodha. Superior right of pre-emption was asserted on the grounds of being a collateral, a co-sharer and an owner of the estate. Price paid for the land was also disputed by him and it was alleged that it was sold in the sum of Rs,10,000 only and the same was its true market value. Sardara was served in person on 6-12-1975 by the Process Server of the Civil Court. Service return was thumb-marked by him and was attested by his son Muhammad Hussain who appended his signatures to the service return. Thereupon, Sardara appointed Ghulam Muhammad Dinar Advocate to conduct his defence in the pre-emption suit and gave him power of attorney. Power of attorney was thumb-marked by him and also attested by his son Muhammad Hussain who appended his signatures to it. On 9-2-1976, written statement on behalf of the vendee/defendant thumb-marked by him and signed by the Advocate was filed in the trial Court. In the written statement, it was pleaded that the pre-emption suit was barred by limitation; description of the property given in the plaint was incorrect; suit was for partial pre-emption; that as the plaintiff was present at the time of sale, he is estopped to sue for pre-emption; the plaint was insufficiently assessed for the purposes of Court-fee and, was therefore, liable to rejection by the Court; the plaint was Not verified in accordance with law, and, therefore, defective. On merits, it was pleaded that the defendant purchased land for a consideration of Rs, 35,000 and the same was fixed in good faith and actually paid. Superior right of pre-emption was also denied. On 9-2- 1976, trial Court settled following issues for determination:--ISSUES:
(1) Whether the plaintiff has superior right of pre-emption? OPP.
(2) Whether Rs, 35,000 were actually paid or fixed in good faith? OPP.
(3) If issue No,2 is Not proved what was market value of the suit land? OP. Parties.
(4) Whether the suit is time-barred? OPD.
(5) Whether the suit is bad for partial pre-emption? OPD.
3. ' Whether the plaintiff is estopped to institute the suit by his words and conduct? OPD.
4. ' Whether the suit has Not been correctly valued for the purposes of Court-fee and jurisdiction?
5. OPD.
6. ' Whether the suit land has Not been correctly described in the plaint? OPD.
(9) Whether verification of the plaint is defective? OPD.
(10) Relief.
7. ' After settlement of issues, suit was postponed for recording of evidence of the parties on 18-3- 1976. On the adjourned date of hearing, counsel for the plaintiff produced copy of pedigree-table Ext. P1, copy of Register Haqdaran Zameen for the year 1970-71 Ext P2, copy of mutation No, 3339 Ext.
8. P3 and closed the plaintiff's affirmative evidence stating that plaintiff's own statement shall be recorded in affirmative and rebuttal together. Counsel's statement was signed by him. On the same day, on the joint statement of counsel for the parties, in which sale price in the sum of Rs, 35,000 and superior right of pre-emption of the plaintiff was admitted, the preemption suit was decreed in favour of the plaintiff upon his paying Rs, 35,000 (minus zar-e-panjam till 18-6-1976) failing which the suit was to stand dismissed. The parties were left to bear their own costs. It may be Noted that other objections taken in the written statement were abandoned in the statement of the counsel for the defendant. On 5-5-1976, Sardara-vendee filed an appeal against the consent decree in the Court of learned District Judge, Sargodha. In the memorandum of appeal, he denied appointment of Ghulam Muhammad Dinar Advocate as his counsel in the pre-emption suit and also controverted his authority for consenting to a decree against him. In fact, entir proceedings taken against him in the pre-emption suit; service of summons; appointment of the Advocate; filing of written statement on his behalf and consequent consent decree were all denied by him. On 147-1976, learned District Judge dismissed the appeal and observed:-- "On my question, learned counsel for the parties affirmed that the only possible modes of disposing of the present matter would be (i) either dismissal of appeal, (ii) or remand for further inquiry on the lines indicated in the application of the appellant referred to above or (iii) to proceed with the same application during pendency of this appeal. On my further question, learned counsel for the parties very rightly specified that there can be No fourth way of disposing of the present matter. I put a third question to the learned counsel for the appellant as to whether it will be tantamount to reopening the case in the event either of this Court itself proceeding with the application referred to above or remanding the same for necessary action by the trial Court ' on that application. Learned counsel for the appellant maintained that in the latter event, the action of this Court would be tantamount to setting aside the impunged decree and reopening the case, but Not in the former event. The point which therefore, arises for determination in this appeal as to whether the proper forum for inquiry into the matter raised on behalf of the appellant in the said application and as such on the appeal to determine the genuineness of the disputed thumb- impression would be this appeal or suit from which it arose or a fresh suit to set aside the (alleged) fraudulent decree under appeal. My answer to this question is that the proper remedy of the defendant appellant is to file aNother suit to avoid the decree under appeal on the ground of alleged fraud. This Court canNot proceed on the application of the appellant referred to above because that would be tantamount to accepting the plea of the defendant-appellant of this case in this behalf. The same would be true of direction to the Court below to proceed with the said application. The decree in this case having been passed on consent is even otherwise Not appealable. Consequently, I dismiss the appeal, with costs."
9. ' Armed with the remedy indicated in the order passed in appeal preferred against the consent decree, Sardara instituted a civil suit against Sher Muhammad to have it declared that the consent decree passed in pre-emption Suit No, 446 of 1975 on 18-3-1976 was based upon fraud and impersonation. It was stated in the plaint that he had neither appointed any counsel in the preemption suit Nor had given any power; Nor thumb-marked the written statement filed on his behalf. It was further stated that a false person impersonated him and gave power of attorney to the Advocate and also thumb-marked written statement on his behalf. Upon the above allegations, consent decree was challenged on the grounds of fraud and impersonation ' Sher Muhammad contested the suit and denied the allegations contained in the plaint. It was submitted that plaintiff had No locus standi to file the suit; appeal filed against the consent decree was dismissed on merits and the decision in appeal had attained finality and that as the civil suit was false and vexatious, the defendant was entitled to compensatory costs. On merits, consent decree was asserted to have been validly passed by the trial Court:-- ' On 18-1-1977, the trial Court framed following issues for determination:-
(1) Whether the plaintiff has locus standi to sue? OPP.
(2) Whether the suit is barred by the judgment in the previous suit between the parties? OPD.
(3) Whether the defendant is entitled to special costs under section 35-A, C.P.C., if so to what extent? OPD
(4) Whether the impugned decree dated 18-3-1976 in Suit No,446 of 1975 passed by Mr. Fayyaz Hamid, Civil Judge Ist Class, Sargodha is liable to be set aside on the grounds stated in paras 1 and 2 of the plaint? OPP.
(5) Relief.
10. ' On 14-2-1977, plaintiff applied for comparison of his thumb impressions on the Vakalatnama and Jawab Da'wa with his sample thumb impressions by a Finger Prints Expert. Defendant to the suit agreed to the proposal. On 3-5-1977, the trial Court took thumb impressions of plaintiff and after summoning the original file relating to the pre-emption suit, sent Vakalatnama and Jawab Da'wa filed in it for comparsion by a Finger Prints Expert. Meanwhile, the plaintiff died and was substituted by his legal representatives on record. Finger Prints Expert reported in his opinion that thumb- impressions on Jawab Da'wa dated 9-2-1976 were different from the sample thumb-impressions of Sardara whereas the thumb-impressions on Vakalatnama were Not clear eNough to permit comparison in miNor details and therefore, No opinion could be given on them. Interrogatories with proposed cross-examination were sent to the Judge Small Causes Court for recording of the statement of Finger Prints Expert. Interrogatories, proposed cross-examination and the replies of the Expert were available at page 155 of the trial Court file. It was made part of the record by the trial Court on 21-1-1979. Plaintiffs' counsel produced copy of register Haqdaran Zameen for the year 1974-75 Exh. Pl, an extract from register Khasra Girdawri from Kharif 1975 to Kharif 1979-Exh. P2, Mutation No, 3344 sanctioned on 18-11-1974-Exh. P3, order dated 18-3-1976 Exh. P4, decree-sheet dated 18-3-1976 Exh. P5, Vakalatnama Exh. P6, Jawab Da'wa dated 9-2-1976 Exh. P7 filed by Sardara, and, closed the plaintiffs' affirmative evidence. It was stated that statements of plaintiffs shall be recorded in rebuttal. Thereafter, the defendant produced Malik Ghulam Muhammad Dinar Advocate, D.W.1 and himself appeared as D.W. 2 in evidence. In addition, copy of Vakalatnama Exh.
11. D1 and judgment given in appeal Exh D2 were produced and defence evidence was closed. One of the plaintiffs, namely Muhammad Hussain appeared as P.W. 1 in rebuttal, and with his statement plaintiffs' evidence was finally closed on 22-11-1980.
12. ' Upon review of the above evidence, the trial Court found that "impugned consent decree dated 18-3-1976 was procured by impersonation and fraud and as such is liable to be annuelld". This finding was recorded under issue No,4. In consequence of the decision given on the above issue, it was held that the plaintiff had the locus standi to sue. As for issues Nos. 2 and 3, those were Not found proved. In result of the finding given under issue No,4, the trial Court decreed plaintiffs' suit as prayed for.
13. ' Defendant to the suit filed an appeal but failed on 3-1-1983. Hence, against the judgments and decrees passed by the lower Courts, application in revision has been filed by the defendant in this Court. It was admitted to hearing on 15-4-1984.
14. ' Points requiring determination in Civil Revision are, whether the defendant in the pre-emption suit namely Sardara gave power of attorney to and appointed Ghulam Muhammad Dinar Advocate as his counsel to conduct defence on his behalf; filed written statement and agreed to the decreeing of the pre-emption suit against him. In support of the above factors that Sardara had appointed Malik Ghulam Muhammad Dinar Advocate and filed written statement in the pre-emption suit and agreed to the consent decree, defendant/petitioner produced Ghulam Muhammad Advocate as D.W. 1 and recored his own statement as D.W.2. D.W.1 deposed that he knew Sardara personally, who had appointed him as his counsel in the pre-emption suit. It was further deposed that Muhammad Hussain son of Sardara was also known to him and was his class-fellow. It was also stated that Sardara thumb-marked and had signed Vakalatnama in his favour. Witness further stated that written statement was filed by Sardara. Sher Muhammad himself supported his stance taken in defence. In rebuttal, Muhammad Hussain, one of the substituted plaintiffs appeared and denied that his father had ever appointed Ghulam Muhammad Dinar Advocate in the pre-emption suit or had authorized him for agreeing to a consent decree. He further stated that he was Not class-fellow of Ghulam Muhammad Dinar Advocate. In addition to the oral evidence given by the parties, Finger Prints Expert had given opinion that the prints on Jawab Da'wa in the pre-emption suit did Not bear similarity with the sample prints. Finger Prints Expert had Not appeared in the witness-box but was examined on commission through interrogatories. The trial Court as well as the lower appellate Court deeply relied upon and received support from the opinion expressed by the Finger Prints Expert. Though the opinion of a Finger Prints Expert was Not per se legal evidence unless he had appeared in Court and was examined and cross-examined by both the parties in respect of it, as held in Chhajju v. Ayyub Ahmed AIR 1915 Allahabad 112; Wadhawa v. Jai Kishan Das AIR 1928 Lah. 427 (1); Ram Authar Shukul v. Baldeo Shukul AIR 1932 Pat. 352, Bhoore Singh and others v. Karan Singh AIR 1935 Allahabad 142; Perumal Mudaliar v. South Indian Railway Co. Ltd. AIR 1937 Madras 407; Coral Indira Consalves v. Joseph Prabhkar Iswariah AIR 1953 Madras 858; Parwat Vedu Patil and aNother v. Sukdev Shivram Patil AIR 1956 Bombay 617; Bommidala Poornaish v. The Union of India AIR 1967 Andhra Pradesh 338; Allah DiNo and 2 others v. Muhammad Umar and 2 others 1974 SCM R 411; yet there was No bar for his examination on commission as was done in the case. By an interim order of the trial Court, the opinion of the Expert was taken on file and No objection was ever raised about its mode of proof. Further, neither in the lower appellate Court Nor in the grounds of revision filed in this Court, any objection about improper admission of the opinion of Finger Prints Expert in evidence was taken. In default of clear objection taken at the appropriate time, the defendant-petitioner was precluded from objecting to the mode of proof regarding admission of the opinion of the Expert or his examination on commission. ##TE ##In Dil Muhammad and aNother v. Sain Das and others AIR 1927 Lahore 396; it was ruled that where a party accepts the certificate of a thumb-impression Expert without formal proof in the trial Court, he canNot be allowed in appeal to say that his evidence should be excluded for want of proof. Similar views were expressed in Karam Din v. Ata Muhammad AIR 1934 Lahore 230, wherein it was held that an objection that a document was wrongly held proved on the basis of the opinion of the handwriting expert as the Expert had Not given sworn testimony in support of his report placed on record ought to be taken in the proper Court and canNot be taken for the first time in revision. Also, the petitioner did Not make any request in the trial Court for summoning of the Expert for his cross-examination in Court to contest soundness of his opinion. Therefore, No exception could be taken to the admission of the report of the Expert in evidence. Consequently, it was rightly read in evidence in Courts below. Vakalatnama given to Ghulam Muhammad Dinar Advocate and the service return were Not only thumb-marked by Sardara but were alleged to be signed by his son Muhammad Hussain. Muhammad Hussain denied his signatures on the Vakalatnama given to Ghulam Muhammad Dinar Advocate. However, his purported signatures were Not put to him, when he was in the witness-box. No serious attempt was made for identifying his signatures on the Vakalatnama and the service return by comparison through a Handwriting Expert. Additionally, there was evidence that on the date of settlement defendant in the pre-emption suit was himself present in the Court, but his consent to it was Not signified by taking his thumb-impressions on file of the trial Court. As far Ext. D1, attested copy of Vakalatnama purportedly given by Sardara to Ghulam Muhammad Dinar Advocate in aNother case, it is sufficient to state that by itself it did Not prove that Ghulam Muhammad Dinar was appointed as an Advocate in the pre-emption suit which culminated in the consent decree, later sought to be avoided on the pleas of fraud and impersonation. Lower Courts, upon consideration of the recorded material did Not rely on the oral statements of Ghulam Muhammad Dinar Advocate and Sher Muhammad. In revision, this finding of the Courts below on credibility of the witnesses for their being relied upon could Not be questioned and asserted that it was wrongly done. As is seen from the preceding discussion, the lower Courts on the basis of their analysis of the evidence, sorrounding circumstances, and, probabilities of events, had found that Sardara had Not consented to decreeing of pre-emption suit against him and had consequently set it aside on that score. This view was neither improbable Nor implausible. Rather, it received enough support from the record. Revisional jurisdiction is Not intended to correct mere errors of fact or law committed by the subordinate Courts. On the other hand, it is directed only to errors of jurisdiction which I do Not find to exist in the instant case.
15. Upon this view of the record, No ground was made out for interference. However, there is one matter which needed to be looked into before parting with the case. Fraud and impersonation for setting aside of the consent decree were subsequent to and Not antecedent to the institution of the pre-emption suit. There was No allegation that the pre-emption suit itself was grounded in fraud. Upon removal of the consent decree from the record, original pre-emption suit, therefore, ought to revive for its trial on merits in accordance with law. Though Civil Revision fails and is accordingly dismissed, but it shall Not affect the plaintiffs' option for revival of the pre-emption suit for its decision on merits. Costs to be borne as incurred.
16. Records be returned.