' The learned II-Additional District Judge, Nawabshah by his consolidated judgment dated 6-11- 1984 and decree dated 21-11-1984 dismissed Civil Appeals Nos.90 of 1998 and 91 of 1998; applicant Hafiz Ali Ahmed has called in question the aforesaid judgment and decree by way of this revision praying that Appeal No 90 of 1998 preferred by him be allowed and the suit filed by him be decreed.
2. The facts, relevant for the purpose of this revision, are that applicant Hafiz Ali Ahmed filed Suit No 38 of 1971 for specific performance of contract and setting aside sale-deed, against the respondents (1) Muhammad Abaci, (2) Basit Ali, (3) Abdul Latif, (4) Abdul Aziz and (5) Younis on the ground that Muhammad Abad and Basit, the original owners of Survey Nos. 321 and 32 Deh Dali Pota, Taluka Naushahro Feroze, agreed to sell these pieces of land by way of sale agreement dated 5-4-1969 to respondents Abdul Latif and Abdul Aziz at the rate of Rs,600 per acre. They received Rs,1,000 as advance and handed over the possession to respondents Adbul Latif and Abdul Aziz, who by way of an Assignment Deed executed on 22-1-1970 transferred their rights and liabilities acquired under the aforesaid agreement, to the applicant after receiving Rs,2,000 from the applicant, being the amount they had already paid to respondents Abad and Basit. They also received a sum of Rs,1,500 from the applicant and executed receipt in his favour at the time of agreement and transferred the possession to him. The remaining amount of consideration was to be paid up to April, 1972. It is the case of applicant/plaintiff that the said agreement was with the consent of respondents Abad and Basit who had promised to execute registered sale-deed in favour of the applicant. The applicant alleged that before the crucial day the respondents Abad and Basit sold the suit land to Younis respondent No,5 and refused to perform their part of contract.
He further alleged that Younis had knowledge of contract of sale of suit land by respondents Abad and Basit to respondents Abdul Latif and Abdul Aziz as also of the assignment in favour of the applicant, and he also knew that the suit land is in possession of the applicant. He asserted that respondent Younis is a purchaser with notice of previous contract, hence he is bound by the said contract.
3. The respondent No,5, Younis alone contested the suit and filed his written statement wherein he admitted that the suit land was originally owned by respondents Abad and Basit, but denied the contract of sale by respondents Abad and Basit in favour of respondents Abdul Latif and Abdul Aziz as also execution of Assignment Deed by respondents Abdul Latif and Abdul Aziz in favour of applicant/plaintiff. He stated that he purchased Survey No,321 from respondent Basit for a consideration of Rs,8,000 under agreement dated 23-9-1967 and registered sale dated 3-11-1970 and that he purchased Survey No,322 from respondent Muhammad Abad for consideration of Rs,5,000 under agreement dated 20-5-1968 and registered sale-deed dated 14-7-1970 and both the transactions of sale were completed as he paid full consideration. He maintained that he is enjoying the possession and produce of the suit land much before the agreement allegedly executed in favour of applicant/plaintiff. He further stated that applicant had knowledge of sale in his favour and that he is all along in possession of the suit land, which has never fallen in the hands of applicant at any point of time.
4. Since the revision application speaks of Civil Appeal No,91 of 1980, it would be pertinent to give a brief account of the facts giving rise to that appeal. The C.A. No,91 of 1980 was directed against judgment and decree passed in Suit No,28 of 1971 filed by Hafiz Muhammad (not Hafiz Ali Ahmed) against Basit Ali and Muhammad Younis. It was the case of Hafiz Muhammad that respondent Basit owner of Survey No 321, Deh Dali Pota, Taluka Naushahro Feroze, sold the same to him through agreement of sale dated 8-6-1970 for Rs,4,200 and after receiving Rs,1,000 delivered the possession to him. The sale-deed was to be executed and registered after receiving the balance sale consideration in the year 1971 and Basit had to pay Rs,8,000 as damages to the plaintiff in case he failed to execute the sale-deed. Plaintiff Hafiz Muhammad alleged that Basit, instead of executing sale-deed in his favour, sold the land to defendant Younis (respondent in the said appeal and respondent No,5 in the instant revision application) for a consideration of Rs,8,000 under registered sale-deed dated 13-11-1970. He further alleged that Younis had knowledge of agreement in favour of plaintiff. The suit (No,28 of 1971) was also contested by respondent Younis alone who filed his written statement and took the same pleas as in Suit No,38 of 1971 filed by Hafiz Ali Muhammad, stated in para. 3 above.
5. On the pleadings of the parties the trial Court settled the issues which were later on consolidated as under:--
(1) Whether defendants are agriculturists. If so, what is its effect?
(2) Whether defendant Basit Ali executed an agreement of sale in favour of Hafiz Muhammad. If yes, its effect?
(3) Who is in possession of suit land?
(4) Whether defendant Muhammad Younis has got right of pre-emption over suit land. If so, what is its effect?
(5) Whether defendants Muhammad Abad and Basit Ali agreed to sell the suit land to defendant Abdul Lateef and Abdul Aziz and executed agreement of sale on 8-4-1969 in their favour after receiving advance of Rs,1,000?
(6) Whether defendants Abdul Lateef and Abdul Aziz assigned and transferred their rights in the suit land to plaintiff and executed their rights in the suit land to plaintiff and executed such deed of agreement after receiving consideration from plaintiff Ali Ahmed, if so, what is its effect?
(7) Whether defendant Muhammad Abad agreed to sell Serial No 322 to. Defendant Muhammad Younis on 20-5-1968. If so, what is its effect?
(8) Whether defendant Basit Ali agreed to sell Serial No 321 to defendant Muhammad Younis. If so, what is its effect?
(9) Whether any of the suit is not maintainable?
(10) What should the decree be?
6. On conclusion of the trial, both suits were dismissed by a common judgment. The plaintiffs in both the suits challenged the judgments and decrees.Hafiz Ali Muhammad filed Civil Appeal No, 90 of 1980 and Hafiz Muhammad, Civil Appeal No,91 of 1980 against respective defendants. The learned II-Additional District Judge, Nawabshah, by his judgment dated 6-11-1984 dismissed both the appeals and passed the decree on 21-11-1984 which have been impugned under this revision application. During the pendency of revision Hafiz Ali Ahmed died, therefore, his Legal Representatives were joined as ' applicants (a) to (g).
7. I have heard learned counsel for the applicant and learned counsel for respondent No,5. The rest of the respondents were called absent. They had also not contested the matter during the trial.
8. It would be useful to point out, of course at the risk of repetition, that the judgment and decree in Civil Appeal No,91 of 1998 has not been challenged, through this revision, therefore, the judgment and decree in Suit No,28 of 1971 filed by Hafiz Muhammad against Basit and Muhammad Younis remain intact and hold the field, as a consequence whereof the alleged contract, countenanced by the sale agreement dated 8-6-1970 goes out of contest. Thus, the controversy for the purpose of this revision is confined to Suit No,38 of 1971 filed by Hafiz Ali Muhammad against the respondents, in respect of the cause of action flowing from the deed of assignment executed on 22-1-1970 by Abdul Latif and Abdul Aziz in favour of the applicant, and in this context the contract of sale under agreement dated 3-4-1969 between original owners and Abdul Latif, Abdul Aziz would essentially be relevant.
9. Learned counsel for the applicant assailed the impugned judgment and decree mostly on legal points. He contended that the trial Court committed an irregularity by consolidating the issues after recording the evidence and further the trial Court failed to record finding on each issue separately, as a result, the judgment rendered by the trial Court practically covered the Suit No,38 of 1971 alone, ignoring Suit No,28 of 1971. He further criticised the judgment of first Appellate Court on the ground that no points for determination were, formulated by the Appellate Court, and therefore, as an inevitable consequence, no finding could be recorded on each material point separately.
According to him, judgment was bad in law, therefore, the case may be remanded either to the Ist Appellate Court or to the trial Court. In support of his contentions he placed reliance on: (1) Haji Muhammad Ibrahim Jalalani v. Syed Iftikhar Hussain and another (PLD 1993 Karachi 296), (2)
Manzoor-ul-Haq v. Mst. Kaneez Begum (1993 CLC 109), (3) Muhammad Mustaqeem v. Abdul Haleem (1992 CLC 435), (4) Juma Khan v. Mst.Shamim (1992 CLC 1022), (5) Mst.Aisha v. Mst.Fatima (1991 CLC 1499), (6) Ghous Bux v. Altaf Hussain (PLD 1993 Karachi 410) and (7) Mst.Inayat Bibi v.
Nazir Ahmed (1991 CLC 1660).
10. The learned counsel for respondent No,5 while controverting these contentions argued that the concurrent findings by two Courts below need not be upset by this Court in limited jurisdiction to be exercised under section 115, C.P.C. Secondly, the revision application is time-barred as it was filed after a period of one year of the passing of impugned judgment/decree. Further, referring to the factual aspect of the case he argued that the case of respondent No,5 is based on Sale Agreement dated 23-9-1967 followed by registered sale deed executed on 13-11-1970 by the admitted owners, while the applicant is labouring for a relief on the basis of an Assignment Agreement which in turn has been executed on the strength of a sale agreement exeouted in favour of assignors by the owners but since the Sale Agreement dated 5-4-1969 is a forged one, the assignee has no case at all. He urged that the respondent No,5 is full owner on the basis of valid title, and even otherwise Agreement dated 23-9-1967 in favour of respondent No,5 is earlier in time. He relied on the authorities NLR 1997 CLJ 451, 1997 MLD 3075 and 1997 MLD 2252. In rebuttal learned counsel for applicant clarified that this revision was filed in the year 1986 while the amendment incorporating second proviso to subsection (1) of section 115, C.P.C. Introducing limitation period of 90 days for filing revision proceedings was effected in the year 1992, therefore, the contention with regard to question of limitation is without force. However, he was of the view that the findings could not be treated concurrent as each issue has not been dilated upon separately.
11. I have carefully considered these contentions in the light of case-law and perused relevant material on record.
12. As regards the points of limitation, the legal position obtaining from the amendment of section 115, C.P.C. Was correctly explained by the learned counsel for the applicant. This revision was filed in the year 1986, therefore, period of .90 days fixed under second proviso to subsection (1) of section 115, C.P.C., which was introduced in 1992 would not apply to this case. However, the revision application filed prior to the aforesaid amendment were not governed by the law of limitation, but even then a party was required to approach the revisional Court with due diligence without any avoidable delay.
13. In this context learned counsel for respondent No,5 referred to the case, Khadim Hussain v. Mst.
Fazla Bibi 1996 SCMR 437, wherein the view taken by the High Court that the Article 181 of the Limitation Act, which prescribed a period of three years for applications for which no period of limitation is B prescribed, was not applicable to application for revision under section 115, C.P.C. Was approved. Further, after referring to earlier decisions reported in PLD 1975 SC 678 and PLD 1995 SC 399, the following observations were made with regard to period of limitation for filing a revision application:-- "Reference was also made in this judgment to the case of Riasat Ali v. Muhammad Jaffar Khan (1991 SCMR 496) wherein the view that the period of limitation for filing a revision is ninety days was once again re-affirmed. However, as was noticed in this case, the jurisdiction under section 115 could also be invoked suo motu and the Court could also make 'such order in the case as it thinks fit'. No doubt, in the judgment of this Court in. Abid Hussain's case, the case of Muhammad Swaleh (PLD 1964 SC 97) was not noticed, however, there appears to be a clear consensus in favour of the view that in case of a revision application filed beyond a period of ninety days, onus would clearly be on the applicant to explain the laches. Consequently, no exception can be taken to the view held by the learned Judge of the High Court which is in consonance with the view consistently taken by this Court in its later decisions."
14. In the instant case, the revision application was filed on 19-3-1986 challenging the judgment dated 6-11-1984 and decree dated 21-11-1984. The application for certified copy was made on 3-12- 1984 and the copies were delivered on 6-2-1985, in this way the period of delay would be computed from 22-11-1984 to 2-12-1984 and 7-12-1985 to 18-3-1986, which comes to 11 days before making application for certified copies and one year, one month and 11 days after obtaining the certified copies of the judgment and decree. An explanation has been furnished by the applicant at para. Seven of the revision application, ex facie in vague terms, hence the averments, for the sake of convenience are reproduced in extenso: "7. That the counsel has suffered cardiac attack twice and was hospitalised twice for a considerable time and after his discharge from the hospital he was under the advice of Specialist for treatment and complete bed rest and has been permitted to take up with light movement with light mental work and has alsb been prevented from raising up the stairs hence the counsel could not prepare and present the appeal before this."
15. The above explanation is short of furnishing reasonable justification for not filing the revision application with due diligence. It is not stated, who was engaged by the applicant to file the revision application after decision of his civil appeal by the Court of Additional District Judge; no details have been furnished to indicate the period for which the advocate, engaged by the applicant suffered cardiac attack and thereafter, under medical advice his work and movements stood restricted. It cannot be presumed on the strength of the above version.That it was only the crucial period during which the Advocate, if any, was in such a state of health as to disable him from filing the revision application.
16. Even otherwise, if at all, the Advocate was indisposed the applicant was not absolved of his responsablity to pursue his matter. Mere engagement of an advocate is not sufficient to relieve the party of his burden. The following observations of the Honourable Supreme Court of Pakistan in the case Rafiq Ahmed Khawaja v. Abdul Haleem (1982 SCMR 1229) are directly relevant to this point:-- ' In Zulfiqar Ali v. Lal Din and another (1974 SCMR 162) it was similarly contended before this Court that the dismissal of the appeal for default was due to the negligence of the counsel and not due to any negligence on the part of the appellant. Repelling the contention late Hamoodur Rehman, C.J. Observed:-- "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility: It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."
17. It is needless to mention that no explanation whatsoever has come forward from the Advocate who was presumably engaged by the applicant to file the revision application. There was exorbitant delay of more than one year, therefore, irrespective of the fact that no period of limitation was prescribed for the filing of a revision application, before the introduction of the second proviso to section 115, C.P.C. The applicant was under an obligation to submit an acceptable and fair explanation justifying the delay in filing the revision application, which he has failed to discharge.
18. I am, therefore, convinced that on account of laches this revision application cannot be entertained and is liable to be dismissed.
19. With regard to consolidation of issues by the trial Court it would suffice to say that this contention was not raised before the 1st Appellate Court, therefore, it cannot be made a point of contest in these proceedings. Moreover, consolidation of issues was made after recording of evidence. In a way the parties had availed ample opportunity of leading evidence on each issue to their full capacity and mere consolidation of issues before passing of judgment did not offend their right of placing any relevant material on record . No doubt there is no specific provision under Order XIV, C.P.0 to lay down a particular procedure for consolidation of issues of two or more suits, but no prejudice has been caused to either party, as explained above, by way of consolidating the issues for the purpose of writing a common judgment; this contention is, therefore, repelled.
20. Secondly, it was argued that Issues Nos.2 and 5 to 8 have been dealt with by the trial Court jointly whereas Order XX, Rule 5, C.P.0 calls for finding or decision with reasons therefor upon each separate issue, therefore, the judgment of trial Court suffers from material irregularity. This argument is based on a technical approach to the provision of Rule 5 of Order XX, C . P.0 .
21. The requirements of law would, certainly be fulfilled if the Court applies its conscious mind to the relevant evidence and records sound reasons in support of the conclusions drawn, therefore, consolidated decision on more than one issues, unless it causes prejudice to a party on merits cannot be called in question on sole ground of procedural lacuna. This point was considered by the Honourable Supreme Court in case, Umer Din v. Muzaffar Ali and others and it was held that if the Ist Appellate Court (viz. District Judge) did not discuss each issue separately but gave findings on all the points that were raised before him, it could not be said that the judgment recorded by him was not a proper one. In this context, it would be relevant to point out that after discussing the material points the learned 1st Appellate Court has clearly mentioned in his judgment that no other point was raised. This part of the judgment was not questioned before this Court on behalf of applicant.
22. However, in the instant cause, the crux of the case revolves around the points of Sale Agreement in favour Latif and Aziz, Assignment said to have been made by them to the applicant, and Sale Agreements followed by registered sale-deeds executed separately by Abad and Basit in favour of respondent No,5 Younus, which all are covered by Issues Nos.2 and 5 to 8, positive finding in respect of Sale Agreements and registered sale-deed in favour of Younus, respondent No,5 sufficiently dislodged the entire claim of applicant while the finding on the genuineness of the Sale Agreements in favour of Latif and Aziz cut at the root of the case, therefore, the learned Civil Judge also did not commit any irregularity by holding a combined discussion on all these issues. The contention of learned counsel for applicant is, thus, without force.
23. Next, the learned counsel attacked the judgment of the Appellate Court on the ground that the points for determination have not been formulated, and argued that in the light of case-law cited by him, vide para. No,9 above the appellate judgment is liable to be set aside and the case may, therefore, be remanded. I have gone through these cases. In the case reported as PLD 1993 Karachi 296 the judgment of Appellate Court was not based on all the issues therefore it was found to be violative of Order XLI, Rule 31, C.P.C. As it was based on hypothesis and conjectures, and the case was remanded. In 1993 CLC 109 it was observed that Firsts Appellate Court was bound to decide each and every issue separately by objective appraisal of evidence. In 1992 CLC 435 the First Appellate Court set aside the findings without recording findings on separate issues and recorded his findings collectively, therefore, the case was remanded. Similarly, in 1992 CLC 1022 and 1991 CLC 1499 the cases were remanded as the points for determination were not set out and reasons were not recorded by the First Appellate Court within the meaning of Order XLI, Rule 31, C,P.C. In PLD 1993 Karachi 410 it was observed that the First Appellate Court had not set out issues as points for determination and on and no findings were given as such the judgment could be set aside, but considering the principle laid down in 1992 SCMR 2334 it was held that while exercising supervisory jurisdiction under section 115, C.P.C. The technicalities can be avoided, consequently the appellate judgment and decree remanding the matter to trial Court were allowed to stand. Lastly in 1991 CLC 1660 there was no application of judicial mind and the judgment was in violation of Order XLI, Rule 31, therefore, it was set aside.
24. With due respect, the objective approach to the point under discussion has always received enormous appreciation. The Honourable Supreme Court in the case--Mst. Roshi and others v. Mst.
Fateh and others 1982 SCMR 542 reaffirming its earlier decision in Choudary Abdul Kabeer v. Mian Abdul Wahid 1968 SCMR 464 made the following observations: "We agree that the judgment' of the learned Additional District Judge is not altogether satisfactory and it would have been more appropriate for him to have himself discussed the merits of the evidence respectively led by the parties. But as this Court has observed in Ch. Abdul Kabeer v. Mian Abdul Wahid and others 1968 SCMR 464 that 'a noncompliance with the strict provision of rule 31 of Order XII of Civil Procedure Code, 1908 may not vitiate the judgment and make it a nullity and the irregularity may be ignored if there has been substantial compliance with it... ... ... ...The question whether in d particular case there has been a substantial compliance with the provisions of rule 31, would depend on the nature of the judgment which is under appeal. For example, if the finding on a question of fact has been arrived at on proper and legal evidence, there could, thus, be no ground for interference under section 100 of the Code of Civil Procedure and, therefore, there would be no necessity for strict compliance with rule 31. But, when important points of law are involved in the case the Appellate Court must indicate the points raised and the reasons for its decision', the question involved in the instant case was purely a question of fact and we feel that although the learned Additional District Judge may have failed strictly to comply with the provisions of Order XLI, Rule 31, C.P.C. There has been a substantial compliance therewith. Hence the judgment of learned Additional District Judge was not a nullity and affirming the finding of the trial Court that Sada was not a Shia being a concurrent finding could not be interfered with in second appeal. The result is that this petition must fail and is dismissed hereby."
25. On the same lines, it was held in 1980 CLC 2155 that the judgment of First Appellate Court can be set aside simply on account of the fact that it does not comply with the requirements of Order XLI, Rule 31, C.P.C, if there has been substantial consideration of all the relevant points and questions required to be determined in the suit or appeal. Likewise it was observed in PLD 1985 Lahore 498 that when the First Appellate Court had recorded findings after due appreciation of the evidence on record, and by drawing reasonable inferences therefrom, the requirements of Order XLI, Rule 31, C.P.C. Stood squarely complied with. It was also observed that legitimate construction of Rule 31, Order XLI, C.P.C. Would be that the judgment should deal with all material points in the case with independent application of mind.
26. Keeping in the mind the decision of the Honourable Supreme Court and rule laid down in the authorities discussed above, I have examined the judgment of the First Appellate Court cautiously and come to the conclusion that no doubt the points for determination have not been formulated in a peculiar format, but substantial justice has been done by the Court by addressing itself to the material points in controversy and recording findings on the points raised before it. As already stated, while describing the facts of the case, the applicant has based his claim on the Assignment deed executed by Abdul Latif and Abdul Aziz who were not the real owners, but they acted so on the strength of a sale agreement allegedly executed in their favour by the original owners, and the evidence on these facts has adequately been discussed and assessed by the trial Court as well First Appellate Court.
27. The trial Court has, in clear terms, recorded findings on the material points of fact holding that the Sale Agreement (Exh.55) purportedly executed on 5-4-1969 by the admitted owners respondents Nos.1 and 2 in favour of respondents Nos.3 and 4 was a forged document. This finding has not been set aside by the learned Additional District Judge in the Appeal and as such, it stood affirmed. The learned counsel for respondent No,5 was therefore, correct in emphasizing that in the revisional jurisdiction, as is the consistent trend of decisions made by the superior Courts, the concurrent findings may not be upset. On the face of it, the finding of the learned trial Court, based on proper appraisement of evidence, calls for no interference. Resultantly, the Assignment deed based on the aforesaid forged Sale Agreement also looses its evidentiary value.
28. Moreover, the trial Court has held that valid title has passed on to the respondent No,5 by virtue of the sale-deed duly executed and registered in his favour by the admitted owners of suit land. So also, an unambiguous finding has been given on the factum of possession holding that respondent No,5 is in possession of the suit land. These findings were also not upset by the First Appellate Court. The learned counsel was not able to show what gross irregularity was committed in arriving at such conclusions on the above points of fact. He could not point out if there was misreading of evidence, on the part of trial Court or the Appellate Court. In this view of the matter, the contention that the appellate judgment be set aside on the ground that formally the points for determinations were not set forth, looses its efficacy, as the material points involved in the cause stood substantially decided.
29. In result of the foregoing discussion, it is concluded that the Revision Application suffers from laches for which no justifiable explanation has come forward, the concurrent findings of Courts below on the points of fact, based on proper appreciation of evidence need no interference, and above all it could not be established that there was illegal exercise of jurisdiction with material irregularity on the part of the Courts below. The revision application is, therefore, dismissed with costs.