' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 3-6-1999, for expunction of remarks passed against the appellant in paras. No,6 and 16 of the judgment.
2. The necessary facts, forming the background of the present appeal, briefly stated, are that a sale-deed was executed on 20th July, 1994, whereby land measuring 24 Kanals, 3 marlas, comprising Khewat No,47, Khata No,175/103 and Khewat No,124, Khata No,422, old Khasra Nos.309/4, 310/4, 310/4, 310/4, present Khasra Nos.24, 25, 26 and 27, situate in village Tahlian, Tehsil Pallandri was purportedly sold to Muhammad Said Khan. The vendors Khadim Hussain and 13 others filed a suit on 13th August, 1994, in the Court of Sub-Judge, Pallandri seeking cancellation of sale-deed on certain grounds mentioned in the plaint. Muhammad Said Khan, who was impleaded as a defendant, appeared on the same day and filed a written statement in which he admitted the claim of plaintiffs and consented that the suit filed by Khadim Hussain and 13 others may be decreed. Accordingly the learned Sub-Judge (Sardar Muhammad Ayaz Khan) decreed the suit and annulled the sale-deed on 13th August, 1994. Abdul Qayyum Khan, respondent No,1 herein, filed a suit for preemption on the basis of his prior right of purchase. He also filed another suit on 2-10- 1994, in which he sought a declaration that the consent decree, mentioned above, was void and it was a result of the forgery. It was also averred that the consent decree was procured in order to defeat the right of preemption of plaintiff-respondent Abdul Qayyum Khan. It was further alleged that the suit was in fact not filed on 13th August, 1994, but was filed on 18th August, 1994. It was also alleged that fraud was practiced to show that the suit was filed and decreed on 13th August, 1994, which, as claimed, was clear from the relevant documents and the Court's register.
3. Both the suits were dismissed for want of proof on 30th August, 1995. First appeal filed by Abdul Qayyum Khan was dismissed by the learned District Judge, Pallandri on 5th March 1997, but the High Court vide its judgment and decree, dated 3-6-1999, has accepted the second appeal filed by Abdul Qayyum Khan and has reversed the findings recorded by the Courts below. The High Court has decreed the suit instituted for cancellation of consent decree and has partly decreed the pre- emption suit. The learned Judge in the High Court has recorded a clear finding that the consent decree passed on 13th August, 1994, was result of fraud and tampering. The learned Judge has found that the suit was not filed on 13th August, 1994, but was filed on 18th August, 1994, when the pre-emption suit had already been instituted. The learned Judge has taken the view that fraud was practiced to defeat the preferential right of plaintiff. It was held by the. High Court that the aforesaid suit was instituted sometime after the institution of the suit for pre-emption filed by Abdul Qayyum Khan, respondent herein, but the same was fraudulently with the connivance of Sub-Judge and his clerk (Ahlmad-Civil) shown to have been instituted on 13-8-1994. The Sub- Judge illegally passed an order and decree on the said date. Therefore, it is also held that the sale- deed on the date the preemption suit was filed was intact. After holding so in para. No,6 of its judgment the High Court in concluding para. No,16 of the impugned judgment observed that a case under the relevant provisions of law shall also be registered keeping in view the observation made in para. 6 of the judgment, after the expiry of period of limitation provided against the judgment and decree, however subject to the orders by the Appellate Court. The High Court has decreed the pre-emption suit of respondent Abdul Qayyum Khan to the extent of land measuring 10 Kanals and 3 Marlas, out of land measuring 24 Kanals and 3 Marlas, in Khewat No,47, along with a share in the house, subject to orders which may be passed by the Appellate Court. The High Court also ordered that a case in light of its findings be registered about the fraud. Against the impugned judgment of the High Court, dated 3-6-1999, two appeals were filed, one by Muhammad Said Khan and others for dismissing the suit of respondent Abdul Qayyum Khan and the other by Abdul Qayyum Khan for decreeing his suit of preemption in toto. This Court vide its judgment passed on 12-5-2000, dismissed the appeal filed by Said Muhammad Khan and others and accepted the appeal filed by Abdul Qayyum Khan partly in terms that apart from the decree of pre-emption granted in favour of Abdul Qayyum Khan by the High Court to the extent of land measuring 10 Kanals, 3 Marlas, along with the share in the house he is also entitled to a further decree of preemption to the extent of land measuring 2 Kanals, 19 Marlas, comprising Survey No,24, Khewat No,124, Khata No,423/435, situate in village Tahlian, Tehsil Sudhnooti, on the basis of contiguity of his land with the vendors on payment of proportionate amount of consideration.
4. The present appeal, with the leave of the Court, has been filed by the appellant, herein, for expunction of remarks recorded against him by the High Court in paras. Nos.6 and 16 of the impugned judgment passed on 3-6-1999.
5. In support of appeal it was vehemently argued by Sardar Muhammad Sadiq Khan, the learned counsel for the appellant, that it was not the case of respondent Abdul Qayyum Khan before the trial Court, the District Judge and the High Court that the appellant was responsible for tampering the record and in any way connived with Muhammad Said Khan, respondent No,2 herein, to pass the consent decree in favour of Khadim Hussain and 13 other vendors. The learned counsel for the appellant pressed into service the submission that there was no material whatsoever before the High Court for holding the appellant responsible for tampering and forging the record of the Court.
The learned counsel contended that on the application moved by Abdul Qayyum Khan, respondent No,1 herein, on 17-9-1994, before the then Sub-Judge, the appellant herein, immediately proceeded to issue notice to the concerned clerk as to why he should not be proceeded against but in the meantime he was transferred to some other place. On 28-12-1995, his successor Sardar Muhammad Anwar Khan dismissed the application for non-prosecution as the complainant Abdul Qayyum Khan after moving the application did not turn up to prosecute the same. The learned counsel vehemently urged that the appellant was condemned unheard by the High Court as before passing an order for registration of the case against the appellant he was not provided an opportunity of hearing nor he was a party before the High Court. The learned counsel strenuously argued that the suit which was filed for cancellation of the decree does not contain the allegation of any tampering or forgery by the appellant, thus, the High Court travelled beyond its jurisdiction.
The judgment and decree, as a matter of fact, according to the learned counsel for the appellant, was not in the handwriting of Sub-Judge but the same is in the handwriting of the relevant clerk (Khalil-ur-Rehman). According to the learned counsel when the suit was presented before the Sub-Judge on 18-8-1994, he passed an order for "Kafiat Sarishta" which appears to be 18-8-1994, and the signatures of the then Sub-Judge are affixed of the same date but later on it was tampered as 13-8-1994 by the said clerk or some other person. The learned counsel contended that on the judgment and decree, dated 13-8-1994, the date and the whole writing is from the hand of the clerk of the Court and not of the Sub-Judge. The learned counsel therefore contended that in view of the material brought on record by the relevant parties, there was no cogent reason for passing adverse remarks against the then Sub-Judge.
6. Sardar Abdul Hamid Khan, the other learned counsel for the appellant, supported the contentions raised by Sardar Muhammad Sadiq Khan.
7. In reply it was contended by Syed Mushtaq Hussain Gilani, the learned counsel for respondent No,1, that he or his client had no grievance against the then Sub-Judge as at the time of entertaining the suit, while ordering for "Kafiat Sarishta" he put the date as 18-8-1994, but later on it was tempered by the clerk of the Court. The judgment and decree also appear to be in the handwriting of the said clerk but the Sub-Judge signed the said documents, most probably, due to negligence or carelessness in a normal routine. The learned counsel, however, maintained that the clerk of the Court (Ahlmad-Civil) was responsible for tampering the record of the Court in order to defeat the right of prior purchase of plaintiff-respondent Abdul Qayyum Khan.
8. After hearing the learned counsel for the parties, it may be stated that in the suit filed by plaintiff- respondent Abdul Qayyum Khan for cancellation of consent decree, there is no allegation against the appellant herein that he was responsible for tampering the record and passing a forged decree in favour of Muhammad Said Khan, respondent No,2 herein. On the other hand in para. No,4 of the plaint it has been averred that the vendors with the connivance of Muhammad Said Khan and others in order to defeat the right of preemption of plaintiff-respondent Abdul Qayyum Khan filed a suit for declaration and procured the consent decree. Abdul Qayyum Khan also prayed in the said suit that the consent decree being void and being a result of connivance of defendants Muhammad Said Khan and others be declared as ineffective against the rights of plaintiff. Similarly in the memo. Of appeal before the District Judge by Abdul Qayyum Khan, there is no allegation against the then Sub-Judge rather in para. No,5 of the memo. Of appeal it has been specifically averred that the decree has been obtained by Muhammad Said Khan in connivance with the clerk of the Court. On the application moved by Abdul Qayyum Khan before the then Sub-Judge for proceeding against the clerk of the Court it has been clearly referred in para. No,2 of the application that the said clerk with the connivance of vendee Muhammad Said Khan tampered the record. Similarly in sub-paras. I and B of para. No,2 it was stated by Abdul Qayyum Khan that the vendee in order to defeat the right of preemption of plaintiff-respondent Abdul Qayyum Khan with the connivance of vendors filed a suit upon which the Sub-Judge ordered for "Kafiat Sarishta" and put the date on the plaint as 18-8-1994 but the .Vendee with the connivance of clerk (Khalil-ur- Rehman) tampered the date 18-8-1994 and entered as 13-8-1994, and thus procured the decree allegedly passed on 13-8-1994. It was further averred by Abdul Qayyum Khan in the application that the statements of vendee and the witness who identified him were recorded on 18-8-1994 by the Sub-Judge, but the clerk of the Court tampered with the record not only by committing forgery upon plaintiff but also upon the Court as such he may be proceeded against. On this application the Sub-Judge, appellant herein, issued a notice to Khalil-ur-Rehman, clerk of the Court on 13-9- 1994, but in the meantime the Sub-Judge was transferred and his successor passed an order on 28-12-1995, that the complainant Abdul Qayyum Khan despite various notices has not appeared in the Court as such the application for initiating enquiry against the said clerk is dismissed for non- prosecution. In the memo. Of appeal before the District Judge filed by respondent Abdul Qayyum Khan there is also no allegation against the appellant rather in para. No,7 of memo. Of appeal it has been averred by Abdul Qayyum Khan, respondent No,1 herein, that the dates of institution of suit and issuance of decree were changed by the connivance of clerk of the Court with Muhammad Said Khan and vendors. Similarly in the memo. Of appeal before the High Court there also seems to be no allegation of any tampering or forging the record of the Court as against the appellant rather in para. No,7 it has been specifically stated that the then Sub-Judge at the time of entertaining the suit ordered for "Kafiat Sarishta" on 18-8-1994, but some Court's "Ahlkar" connived with respondent and entered the date as 13-8-1994, whereupon the presiding officer did not put his signature. It was also averred that on the day of institution of the suit the written statement was filed by the vendee on the same day, whereby he admitted the claim of vendors. The statements of vendee and his identifier were recorded on 18-8-1994. Similarly in sub-para. (&) of para. No,7 of the memo. Of appeal before the High Court, it ,has been alleged that the "Ahlkar" of the Court tampered with the record and showed the institution of suit as 13-8-1994.
9. The aforementioned facts tend to show beyond any manner of doubt that the case of respondent Abdul Qayyum Khan throughout had been that the said tampering of the Court's record took place because of the connivance of the clerk of the Court with the vendee and vendors. It was for the first time during arguments in the High Court when Sardar Muhammad Khan, the learned counsel for Abdul Qayyum Khan, levelled allegations against the Sub-Judge. On the arguments advanced by Sardar Muhammad Khan, it was held by the High Court that the suit was instituted sometime after the institution of suit for pre-emption filed by the plaintiff-appellant therein but the same was, with the connivance of Sub-Judge and his clerk, shown to have been instituted on 13-8-1994. The Sub-Judge thus illegally passed the judgment and decree on the said date.
10. However, if fraud or forgery appeared from the record the High Court has the power to order registration of a case as was actually done but the question which requires consideration is whether there was sufficient material to proceed against the appellant. It has been conclusively decided in Civil Appeal No,143 of 1999 titled Muhammad Said Khan and others v. Abdul Qayyum Khan which judgment was announced by this Court on 12-5-2000 that the suit under references was in fact filed on 18th August 1994 but the decree was fraudulently shown to have been passed on 13th August 1994. It is indeed alarming and unfortunate aspect of the case that the decree was passed by the appellant. However the extenuating circumstances which appear in favour of appellant are that statements of vendee Muhammad Said Khan and his identifier Anwar Hussain were recorded in his own handwriting on 18-8-1994. In our view if the appellant had connived with the vendee in tampering the record, he could have put the date on the said statements as 13-8- 1994 instead of 18-8-1994. However these matters can be decided after proper inquiry. The High Court may hold an inquiry under the Efficiency and Discipline Rules against the appellant and then to pass an appropriate order. Registration of a case does not seem to be necessary. However registration of the case against "Ahlmad Civil" is necessary.
11. For the afore stated reasons, we accept the appeal filed by the appellant and order for expunction of adverse remarks. These adverse remarks shall stand deleted and shall not be read against the appellant. A copy of this judgment shall be sent to the Chief Justice of the High Court for proceeding against the appellant under the E&D Rules.