JAVED IQBAL. J.---This petition for leave to appeal is directed against the judgment dated 15-8- 2000 passed by learned Division Bench of the Lahore High Court. Lahore whereby Regular First Appeal bearing No,317 of 2000 preferred on behalf of petitioners has been dismissed and ex parte judgment and decree dated 19-5-2000 passed by learned Civil . Judge, Lahore was kept intact whereby the suit filed by Mst. Zamir Fatima (respondent) for declaration with consequential relief was dismissed.
2. Precisely stated the facts of the case as enumerated in the impugned judgment are to the effect that "respondent No,1 filed a suit against the appellants as well as the remaining respondents Nos.2 to 4 claiming a declaration that she is the owner of the suit house and that the sale-deeds dated 29-2-1994 executed by respondent No,3 acting on behalf of respondent No,2, in favour of present appellants Nos.2 and 3 be declared to be illegal and ineffective upon her rights and for possession of the suit house. It was alleged that she was married to respondent No,2 on 29-8-1986: that the suit house was transferred by respondent. No,2 in her favour at the time of her marriage through a registered document dated 20-8-198.6 and that the factum of transfer of the property in lieu of dower was also recorded in the Nikahnama; that possession was delivered unto the respondent No,1 who rented out the house to one Muhammad Akram Mithu; that appellants Nos.1 and 4 had taken over the possession of the house and claimed that they had purchased the property from appellants Nos.2 and 3. It was then that she acquired knowledge of the said sale-deed; that respondent No,2 or respondent No,3 had no lawful authority to alienate the suit house. Respondents Nos.2 and 3 were proceeded against ex parte by the learned trial Court on their failure to appear despite service. Appellants Nos.1 and 4 had appeared but sub sequent absented themselves and were proceeded against ex parte. Appellants Nos.2 and 3, however, filed a written statement through a general attorney claiming a valid sale by respondent No,2 in favour of appellants Nos. 2 and 3 and further stating that appellant No,1 and respondent No,4 have purchased the house from appellants Nos.2 and 3. Appellants Nos.2 and 3 also later absented themselves and ultimately were proceeded against ex parte. Evidence of respondent No,1 was recorded. Apart from producing some witnesses respondent No,1 produced her Nikahnama, sale-deed in her favour as also sale- deeds in favour of her husband. The learned trial Court also noted that the appellants Nos. 2 and 3 had admitted the fact that respondent No,1 was lawfully wedded to respondent No,2. On the basis of evidence so recorded, the suit of respondent No,1 was decreed". Being aggrieved Regular First Appeal was preferred on behalf of petitioner which has been dismissed vide judgment impugned, hence this petition.
3. Heard Mr. Muhammad Hanif Niazi, learned Advocate Supreme Court on behalf of petitioners who mainly contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged emphatically that the learned High Court could not have dismissed the Regular First Appeal in limine without examining the relevant record which was never summoned and resulted in serious prejudice against the petitioners. It is argued that no evidence has come on record showing that possession of the property in question was handed over by the donor to the donee which is sine qua non for Hiba-bil-lwaz which aspect of the matter escaped notice of the learned High Court and as such the transaction being incomplete has no legal sanctity whatsoever in accordance with Muhammadan Law. It is also argued that since the possession was not handed over the donor has full right to revoke it and dispose of the property in question as per his wishes. It is pointed out that the case should have been disposed of in accordance with law and on its merits instead of technicalities and learned High Court should have remanded the case.
4. We have carefully examined the esteemed views as canvassed at the bar by Mr. Muhammad Hanif Niazi, learned Advocate Supreme Court on behalf of petitioner in the light of relevant provisions of law and record of the case. We have perused the judgment of learned Civil Judge dated 19-5-2000 as well as judgment impugned. We have also examined the evidence led by the respondent to substantiate his claim. We are not persuaded to agree with the prime contention of learned Advocate Supreme Court on belief of petitioners that Regular First Appeal could not have been dismissed in limine without summoning the record from the Court of Civil Judge for the reasons that if Regular First Appeal could have been decided on the basis of available record there was no necessity for summoning the record from the Court of Civil Judge. After having gone through the available record we are of the considered opinion that since the facts were not disputed as such the controversy could have been resolved on the basis of available record. The learned High Court was conscious of the above fact and it was observed that "since the facts narrated in the impugned judgment are not seriously disputed we do not feel the necessity to call for the record to dispose of the case". The learned Advocate Supreme Court has laid much stress on the factum of possession which according to him was not handed over to the respondent and as such the gift could not have been considered a valid one and therefore the petitioner was competent to dispose of the property in the manner as deemed fit and proper but the said contention is in oblivion of the fact that possession in Hiba-bil-lwaz (gift for consideration) is not an essential ingredient. Mst. Zamir Fatima (respondent) has proved by leading worthy of credence evidence that the house in question was gifted to her in lieu of dower and possession whereof remained with her through tenant namely Muhammad Akram Mithu. The learned Advocate Supreme Court on behalf of petitioners could not furnish any plausible justification that how the sale of house in question could have been made on 29-2-1994 when it was given to Mst. Zamir Fatima by means of gift on 29-8-1986. The Nikahnama produced by Mst. Zamir Fatima lends corroboration to his contention that the house in question was gifted to her in lieu of dower, a mention whereof has been made in Serial No,13 of the Nikahnama with which presumption of truth is attached which could not be rebutted. It can thus safely be inferred that on 29-2-1994 the petitioner had no title to dispose of the house in question. The learned Civil Judge after having gone through the evidence led by the respondents has drawn the following conclusion:-- "8. 1 have given my anxious consideration to the entire evidence available on record and given due weight to the arguments of learned counsel for the plaintiff and in my considered view, the plaintiff has produced good, cogent and authentic evidence in support of her contention because Exh.P-1 Nikahnama shows that at the time of Nikah, suit property in lieu of dower amount was given to the plaintiff. The plaintiff in order to establish her contention has examined marginal witness of Nikahnama as well as Deed in favour of plaintiff regarding transfer of suit house as Exh.P-2. As defendant No, I has transferred his right of ownership in favour of the plaintiff in the year 1986, then, subsequently, he had no right to transfer the suit house by executing any document in favour of defendants. There is no rebuttal on the file to rebut the contention of the plaintiff. So I am relying upon the ex parte evidence available on record and decree the suit ex parte with costs."
5. The said well-reasoned conclusion was concurred by the learned Division Bench of Lahore High Court with the following observations:- Learned counsel then tried to argue that there is no evidence on record to show that the gift in favour of respondent No,1 was completed by delivery of possession.
We are afraid the contention is also baseless. It is appellants' own case that the gift in favour of respondent No,1 was a gift for consideration i,e, being in lieu of her dower. Even if we accept the contention of the learned counsel that possession was not delivered to respondent No,1 .Under the said gift, nothing turns on the same as in case of possession is not required to complete the transfer. Apart from the said admission contained in ground (b) of the memo. Of appeal, appellants Nos.2 and 3 who were the only contesting defendants in the suit and filed a written statement admitting that respondent No,1 is the wife of respondent No,2. The lady produced her Nikahnama which is a public document and the learned counsel has not contested the observation of the learned trial Court in the impugned judgment that the said Nikahanama does narrate that the suit property was given to respondent No, I in lieu of her dower. Needless to add that the Nikah was performed on 29-8-1986, whereas the subsequent sale in favour of appellants Nos.2 and 3 was made on 26-9-1994 and since respondent No,2 was not left with any title in the suit house he could not convey lawful title to appellants Nos. 2 and 3 and consequently thereafter question of appellants Nos.2 & 3 agreeing to transfer a lawful title in the suit of appellant No,1 or respondent No,4 does not arise.
6. The learned High Court has dilated upon all the contentions as agitated on behalf of petitioner in a comprehensive manner and no illegality or infirmity could be pointed out by the learned Advocate Supreme Court on behalf of petitioner. There is no denying the fact that no attempt whatsoever was made to get the ex parte order set aside and therefore, at this belated stage it cannot be pressed that the proper opportunity of hearing was not afforded to the petitioner who himself had not availed it at opportune moment.
7. We have also adverted to the contention as agitated on behalf of petitioner that the case should have been remanded which appears to be fallacious one as only those cases should have been remanded which could not be decided on the basis of available record as it would be in the interest of justice. We are of the firm view that if a controversy can be resolved on the basis of available evidence then the question of its remand does not arise. It is well settled by now that where the evidence on record is sufficient for the Court concerned to decide the matter itself, remand should not be ordered and more so, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand. In the case in hand the petitioners could have very conveniently taken appropriate steps to get the ex parte order set aside which was never done. In this regard we are fortified by the dictum as laid down in Pramatha Nath Chowdhury v. Kamir Mondal (PLD 1965 SC 434), Muhammad Saghir Bhatti v. Federation of Pakistan (PLD 1958 SC (Pak.) 221).
8. In the light of foregoing discussion the conclusion as arrived at by the learned Civil Judge and concurred by the High Court being well based hardly calls for any interference. The learned counsel was unable to raise any substantial question of law of public importance which is sine qua non for grant of leave. The petition being meritless is dismissed and leave declined.