Form No.

HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
W.P.No.62948 of 2020
Capt. Umer Naveed Pirzada Vs. Rana Abdur Raheem etc.
S. No. of Date of Order with signature of Judge, and that of
order/ order/ parties or counsel, where necessary
Proceeding Proceeding
03.12.2020 M/s. Jahangir A. Jhojha & Iftikhar Ahmed Chohan, Advocates for
petitioners.

The concurrent orders dated 20.11.2012 & 07.03.2019 of the two

Courts below are the subject of petition in hand, whereby while

allowing application u/s 12(2) read with o.IX r. 13 of the Code, 1908

decree dated 21.01.2007 passed in suit for specific performance

instituted by the petitioner was set aside.

2. The facts of the case are already enumerated in the order,

however, to better understand, precisely, respondent No.1 being

Overseas Pakistani had been residing in USA for the last more than

three decades and the suit area vested to him through inheritance. He

was in abroad, when an unregistered power of attorney was

maneuvered in favour of one Rana Abdul Ghafoor, who allegedly sold

out land to present petitioner vide agreement to sell dated 17.07.2000.

The latter on its basis filed the suit for specific performance against

respondent No.1 & others before Civil Court, Lahore. As a matter of

fact and record, respondent No.1 or his alleged attorney Rana Abdul

Ghafoor (who died before institution of suit, but even then added in

the suit as defendant No.4) were never served. Although process

through ordinary modes issued, yet learned Civil Judge without

recording statement of process server to satisfy that respondent No.1

had deliberately avoided to receive the same, ordered for effecting his

service through citation in the newspaper. After its publication, one

Ijaz Ahmad Khan, Advocate while submitting unsigned Memo of

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Appearance, marked his presence on behalf of respondent No.1, who

subsequently disappeared resulting into ex parte proceedings against

him and the decree in absentia of respondent No.1 qua his valuable

property passed. The latter when returned to Pakistan for a short

period, the said proceedings and decree faced to him, who tabled

application for its setting aside asserting that Rana Abdul Ghafoor was

not his agent, that agency in between them had never constituted, that

on the basis of forged, fictitious & unregistered power of attorney, the

questioned agreement to sell was managed, that in the suit

correct/current address of respondent No.1 was not mentioned, that

neither his service was effected nor he ever directed any Advocate to

represent him in the suit filed by petitioner and that ex parte decree

dated 21.01.2007 was earned by use of fraud & misrepresentation.

Obviously, being beneficiary, the stance of respondent No.1 was

forcefully defended by the petitioner through written reply with

specific stance that respondent No.1 for the last more than ten years

had already permanently shifted to Pakistan, who required Ijaz

Ahmad Khan, Advocate to represent him in the suit and its

proceedings were in his complete knowledge.

The learned Civil Court having such pleadings, formulated issues and

out of those, issue No.1 being important for ready reference is given

below:-

Whether the impugned judgment and decree dated

21.01.2007 has been obtained through fraud and
misrepresentation as the service of the petitioner has
not been effected in accordance with law and the
address of the petitioner has wrongly been
mentioned. Hence the same is liable to be set
aside:OPA

After receiving evidence in pros & cons, the Courts below unanimously

set aside the ex parte proceedings and the decree through orders
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referred in para 1 ante, which being injurious to the petitioner,

compelled him to prefer petition in hand.

3. M/s. Jahangir A. Jhojha, ASC assisted by Iftikhar Ahmed

Chohan, Advocate took their maximum time to argue the case and

record consulted as well with their able assistance.

4. Undeniably, the basic onus probandi of the above-noted issue

was upon respondent No.1. To discharge it, on his behalf special

attorney, Muhammad Boota (AW1) appeared and stated in line of the

facts detailed in application for setting aside of decree. He also

tendered copy of CNIC & Passport of the respondent No.1, which

provided enough proof that his address mentioned in the plaint was

absolutely diverse/different to that mentioned in the public record

issued/prepared much prior to filing of suit. The said evidence was

enough to shift the onus towards petitioner/beneficiary of the ex parte

decree to rebut the same. He himself did not appear, rather on his

behalf his attorney (RW1) mainly stated that respondent No.1 was in

complete knowledge of the proceedings of the suit and that he

authorized an Advocate to represent him. The said witness (RW1),

however, was not found to be credible to stick firmly that address of

respondent No.1 mentioned in plaint was correct one or that

mentioned in CNIC as well as Passport was incorrect/false.

Admittedly not a single process was issued on the address of

respondent No.1 given in said documents, which under the law bear

presumption of regularity & correctness. Moreover, the process server

or any private person of the vicinity was not summoned to explore

that respondent No.1 had been residing at the abode, which was

mentioned in the plaint. The emphasis of Mr. Jhojha that after

submitting Memo of Appearance on behalf of petitioner by his

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authorized counsel, there left nothing to prove that his service was not

effected is not well founded for the counts; firstly, there is no backing

of law that an Advocate can represent a litigant by submitting such

memo; secondly, it was never signed by respondent No.1,thus he

could not be bound by it; and thirdly Mr. Ijaz Ahmed Khan, Advocate

was the best person to be summoned to confirm that respondent No.1

being in knowledge of the suit proceedings had directed him to appear

on his behalf. His deliberate withholding by the beneficiary of the

decree was sufficient for the Courts to draw hostile inference under

Article 129 illustration (g) of the Qanun-e-Shahadat Order, 1984, that

had he been examined, he might have gone adverse to the stance of the

petitioner. Mere bringing on record copies of some other Memos of

Appearance of said Advocate to say that he was regularly representing

respondent No.1 in some other cases was not enough to protect the ex

parte proceedings & decree passed in the case in hand. The production

of document and proof of its contents are two different subjects and,

indeed, latter aspect is the crucial to be proved. When Mr. Jhojha was

asked why the Advocate, who filed the Memo was not summoned, he

submitted that he was the counsel of the adversary and his

examination might have become risky was fallacious. It is well

established by now that sine qua non for the beneficiary to examine the

concerned person to prove the construction of document and the

moment he made an adverse statement, request for declaring him

hostile could be made to illustrate/dig out truth through art of cross-

examination. For any risk, the requirement of law cannot be excused.

Assuming, without conceding, that Memo of Appearance was

genuinely executed by respondent No.1, even then it was not an

authorization under the law to represent a litigant, which at the most

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could be treated as an intimation that the Advocate/Agent, who filed

it would furnish proper power of attorney on the coming date of

hearing. In absence thereof, imperative for the Court to at least issue

notice pervi to the litigant on whose behalf it purportedly submitted.

The foremost duty of the Courts is to dispense with justice while

performing within the parameters of the law & law alone. For their any

omission or act alien to law, the case of either side cannot be

prejudiced.

5. The Court is conscious that nowadays, the properties of the

absentees, especially overseas Pakistanis are at the mercy of looters,

grabbers or snatchers, therefore, the such like cases are to be dealt with

extra care. The case in hand could be an example of those wherein, the

alleged agreement to sell might have not been executed by the

titleholder nor by his agent having registered power of attorney.The

respondent No.1 was sued while giving a fake address. Moreover, the

institution of suit against purported agent of respondent No.1 Rana

Abdul Ghafoor, who had already passed away, was not proceedable

until and unless his LRS were impleaded. It is well established by now

that decree against dead person is, otherwise nullity in the eye of

law.These all questions are yet to be decided and the suit of the

petitioner is only revived through the impugned orders. If there is a

genuine case, the petitioner should not be worry. Nothing serious

prejudice is caused to him, who can still prove his agreement to sell

through proper trial while providing chance to the alleged vendor as

well.

6. Mr. Jahangir A. Jhojha, who is a keen professional, although put

his best, but failed to persuade that either the impugned orders are

coram non judice/ultra vires or suffering from jurisdictional defect. The

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Courts below after appreciating each and every aspect of the case and

considering available evidence as per its pith and substance passed

exhaustive impugned orders, which being perfect and having been

passed in exercise of lawful authority are confirmed by dismissing this

petition in limine subject to cost of Rs. 50,000/-to be deposited in the

welfare account of the Lahore High Court Bar Association Dispensary.

(Ch. Muhammad Masood Jahangir)

Judge
Amjad