' 7/12 share of Property No,S.51-R42/46 commonly known as 42.-A, Lawrence Road, Lahore was transferred to Aziz-ud.Din Ahmad Khan/respondent No,1, which became subject-matter of litigation between him and his father-in-law M.Z. Khan. The said litigation reached this Court in the form of writ petition filed by Aziz-ud-Din Ahmad Khan (Writ Petition No,406-R of 1974), which petition was accepted on 15-3-1980 "with the direction that the Settlement Authority now replaced by officer appointed under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act to hold enquiry on the applications of the petitioner submitted on 30-9-1972, 1-4-1973 and 7-9-1973 but that enquiry shall be held at the highest level so that a just and fair order should be passed by the officer in accordance with law". Both the parties feeling dissatisfied with that judgment approached' the Supreme Court or Pakistan when C.A. No,276 of 1981 and .C.A. No,277 of 1981 were dismissed on 27-10-1986 with the observation that "The Notified Officer will be free to resolve all the disputed questions of fact making it clear at the same time that the observations of the High Court touching the facts should not be taken in any manner to foreclose, prejudice or curtail an independent and free inquiry into the disputed matter". It is in this sequel that order dated 13-8- 1996 was passed by the Chief Settlement Commissioner/Member, Board of Revenue, which has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The learned counsel for the parties have been heard and the material on the record has been considered with their assistance.
3. The contention of the learned counsel for the petitioner that after the issuance of PTD the department could not make any probe into the matter or no inquiry could be undertaken or that the matter could be left to be determined by the Civil Court is untenable in view of the judgment of the Honourable Supreme Court dated 27-10-1986 rendered in C.A. No,276 of 1981 and 277 of 1981 wherein maintaining the order passed in the writ petition referred to above, an unambiguous direction was issued to the Notified Officer "to resolve all the disputed questions of fact" through an independent and free inquiry into the "disputed matter". The observation/direction contained in the judgment of the highest forum of the country is entitled to highest regard and respect and binds the parties. This Court is not in a position to ignore the same rather no one can be allowed to find faults with such a clear mandate contained in the said judgment. It was undoubtedly the duty of the Notified Officer to have made an independent inquiry enabling him to resolve the disputed matter. For the same reasons reliance of the learned counsel upon Sh. Manzoor Hussain v. Maula Bakhsh and another 1981 Law Notes (SC) 684 is inapt in view of the admitted position that the judgment of the Honourable Supreme Court has remained intact and has binding force qua the parties. In embarking upon such an inquiry respondent No,3 has not overstepped his jurisdiction as that aspect of the matter stood clinched by the Supreme Court.
4. The crucial issue, however, was about the agreements statedly executed from time to time by Aziz-ud-Din Ahmad Khan. An extensive probe has been made by respondent No,3 in the matter.
The undisputed position noticeable is that Azizud-Din Ahmad Khan was transferee of 7/12 share whose proportionate share of price was Rs,39,200 but, he was not in a position to make payment of the price and had thus to make arrangement for that purpose. M.Z. Khan was his father-in-law with whom he is stated to have entered into agreements. On the basis of one such agreement dated 31-12-1996 he approached the Settlement Authorities, succeeded in the restoration of transfer which had been cancelled and eventually P.T.O. Dated 9-4-1971 was issued to him for 7/12 share i.e, the whole share of Aziz-ud-Din Ahmad Khan. It was followed by P.T.D. Dated 7-5-1971. It is also undisputed that on his failure to pay the price the department had issued notices to Aziz-ud-Din Ahmad Khan and had ordered cancellation and resumption of the portion transferred to him. It was M.Z. Khan who agitateethe matter and then pursued it and finally got the transfer restored from the learned Settlement Commissioner as per order dated 3-11-1970. Aziz-ud-Din Ahmad Khan made a first move long thereafter by making an application dated 30-9-1972 followed by other applications, for holding an inquiry into the matter that in the year 1966 he suffered from a mental ailment and had started living with his father-in-law M.Z. Khan when the later taking advantage of his mental illness got certain documents signed by him and implemented in the settlement record.
It was in this context that order in the above mentioned writ petition and consequently by the Honourable Supreme Court of Pakistan came to be passed. Respondent No,3 has through a fairly lengthy order dealt with the matter taking the view that the agreement of association, dated 31-12- 1966 and all other documents of like nature executed between the parties and the consequent.
P.T.O. And P.T.D. Issued in favour of Mr. M.Z. Khan in respect of the property in dispute are held to be void and of no legal effect. In the same way, the orders of the Settlement Commissioner, Lahore, dated 3-11-1970, 26-2-1971 and 18-4-1971 will be ignored as void and non-existent. Consequently, the property in question to the extent of 7/12 share of '.Ie applicant will revert to the position as on 1- 12-1966. This would mean that a P.T.D. Will be issued in favour of Mr. Aziz-ud-Din Ahmad Khan after he has paid the balance price and other dues, if. Any, within six months from the date of receiving a copy of this order". The conclusion so recorded by respondent No,3 has various implications and facets inasmuch as that:
(i) The execution of agreement dated 31-12-1966 which contains the apportionment of shares inter se M.Z. Khan and Aziz-ud-Din Ahmad Khan was admitted but its efficacy was sought to be avoided on the ground of mental illness of Aziz-ud-Din Ahmad Khan.
(ii) With the setting aside of order of Settlement Commissioner dated 3-11-1970, the resumption order of the property, passed by the Deputy Settlement Commissioner on 15-7-1970 would stand revived.
' At places (in the impugned order) respondent No,3 himself refers to the agreement dated 31-12- 1966 imputing deviation thereof to M.Z. Khan that its terms had not been truly implemented and reflected in the proceedings of the Department, the P.T.O. And the P.T.D. Issued in favour of M.Z.
Khan. In paragraph No,21 of his order it was noted that Aziz-ud-Din Ahmad Khan had by virtue of agreement dated 31-12-1966 surrendered 51/56 share in favour of M.Z. Khan while 5/56 share had to remain with him. Though this observation appears in the course of criticism about the conduct of M.Z. Khan that he got the lull share of Aziz-ud-Din Ahmad Khan transferred to him yet the factum of the said agreement having been arrived at between the parties is clearly inferred and demonstrated. The same could not be rendered void or ineffective unless it had been proved by Aziz-ud-Din Ahmad Khan that it was result of "undue influence" exerted upon him. In the context of the allegations of Aziz-udDin Ahmad Khan reference to section 16 of the Contract Act, 1872, may be of relevance. Admittedly Aziz-ud-Din Ahmad Khan did not appear to make any statement before respondent No,3 in support of his allegations, his appearance and deposition would have enabled the other party to the agreement to cross-examine him. That would have been of immense importance. Mere certification by the doctor and statement who statedly had been giving him treatment would have been only a corroborative and supporting piece of evidence. It may be observed that though the relationship between the parties was admitted yet it was for Aziz-ud-Din Ahmad Khan to have deposed about the alleged dominating position of M.Z. Khan and the state of his physical and mental condition when the agreement was executed. It may be observed that precise nature of influence exercised, manner of use of influence, unfair advantage derived by the other party had to be proved with precision. Because the essence of "undue influence" is that a person is constrained to do against his will, but for the influence, he would have refused to do, if left to exercise his own judgment. Reference in this context may be made to Amir Chand Tota Ram, Delhi v. Smt. Sucheta Kripalani, Delhi AIR 1961 Punjab 383. Mere existence of relationship between the parties does not necessarily lead to the conclusion, as to exercise of undue influence as observed in Misrilal Jalamchai d and another v. Sobhachand d and others AIR 1956 Bombay 569. Reference may also be made to Thakkadi Syed Muhammad v. Ahmed Fathummal and others AIR 1973 Madras 302 ane Afsar Shaikh and another v. Soleman aibi and others AIR 1976 SC 163. In Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCM R 145 transaction was sought to be avoided on the allegation of fraud and undue influence, but the vendor did not appear as a witness to depose on oath regarding undue influence practised upon him in the execution of agreement. It was held that the allegation was not proved. Besides that Aziz-ud-Din Ahmad Khan chose not to make statement before respondent No,3 his long silence in the matter also gave rise to adverse inferences against him. I am conscious of the precedents of the superior Courts concerning the rights of Pardanasheen illiterate woman particularly belonging to rural areas, where some different considerations have also to be kept in view. But herein the person was a well placed educated citizen. The matter require to be considered, keeping ambient circumstances in view. It is undeniable fact that Aziz-ud-Din Ahmad Khan had failed to pay the price and the property had been cancelled and resumed from his name. It was M.Z. Khan who pursued the matter with the Department as a result whereof the property was retrieved. The property which had thus once been lost reverted to Aziz-ud-Din Ahmad Khan due to the efforts made by M.Z. Khan on payment of price by him. This way he rather secured the property. Of course this was pursuant to agreement dated 31-12-1996. If order dated 3-11-1970 had not been passed at the initiative of M.Z.
Khan by the learned Settlement Commissioner, Aziz-ud-Din Ahmad Khan would have gained nothing. The transaction thus made and envisaged by agreement dated 31-12-1966 was neither unconscionable nor was detrimental to the interest of Aziz-ud-Din Ahmad Khan. Respondent No,3, however, has proceeded on the basis of certain assumptions and conjectures in nullifying agreement dated 31-12-1966. The contention of the learned counsel for Aziz-ud-Din Ahmad Khan as to his mental condition and position of M.Z. Khan, his father-in-law, aimed at, perhaps, to evoke emotions and sentiments, in the first flush appeared to be attractive but on closer examination of the matter in the context of the events then prevailing, has been found unworthy of countenance. I am, therefore, unable to subscribe to that part of the finding and order of respondent No,3 by which he has ordered the nullification of agreement dated 31-12-1966 and also of order dated 3-11-1970 passed by the learned Settlement Commissioner. It may be observed again that in case order dated 3-11-1970 is removed from the field cancellation and resumption order dated 15-7-1970 passed by the Deputy Settlement Commissioner revives, consequences whereof are quite obvious.
I am, thus, on appraisal of the matter, of the view that agreement dated 31-12-1966 was indeed executed between the parties which suffered from no factual or legal infirmity and had full legal efficacy, the same continue to bind the parties and that order dated 3-11-1970 passed by the learned Settlement Commissioner, Lahore was valid and is operative. The contention about improper presentation of agreement dated 31-12-1966 before the Settlement Authorities also does not advance the case of Aziz-ud-Din Ahmad Khan, for the same had been implemented by the Department and had indeed been given effect to.
5. I am constrained to observe that the perusal of the order passed by respondent No,3 smacks of some prejudice qua the person and status of late M.Z. Khan an ex-civil servant whose conduct has been discussed and criticized unnecessarily and disproportionately. Suffice it to observe that scales of justice do not and should not tilt on account of a particular position and status a person holds. Even-handed administration and dispensation of justice is the hallmark of a judicial system, necessary to maintain equilibrium in Society. No one should gain or be allowed to take advantage of his position or status, how high it may be. At the same time no one should suffer deprivation, on account of his status and position. All are equal before the law and the Court. The matters are to be decided without fear and favour. Therefore, critical observations/remarks made in the order, particularly in paragraph 24 of the impugned order cannot be approved.
'As a consequence of the above the writ petition is accepted partially to the extent that agreement dated 31-12-1966 was legal and binds the parties and that order passed by the learned Settlement Commissioner on 3-11-1970 remain operative (whereby the property was restored) but would decline the restoration of P.T.O. And P.T.D. Issued in favour of M.Z. Khan, with the direction to the Notified Officer to issue the title documents to both the parties in the ratio of 51/56 and 5/56 as envisaged by agreement dated 31-12-1966. They will be given adjustment in the price accordingly.
The writ petition stands disposed of in these terms. No order as to costs. accordingly.