2016 Y L R 198

[Lahore]

Before Ali Akbar Qureshi, J

Haji GHULAM MUHAMMAD through L.Rs. and others---Petitioners

Versus

TAHIR MEHMOOD and others---Respondents

C.R. No.299 of 2003, heard on 3rd June, 2015.

(a) Arbitration Act (X of 1940)---

----S.30---Objections against award---Petitioners did not file objection under S.30,

Arbitration Act, 1940 at the time when award was submitted before Trial Court for making
the same rule of court---Petitioner, in circumstances, admitted the award and was not
permitted to raise any such objection at belated stage.

​ Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160;
Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372; Bashir Ahmad
and 21 others v. Shah Muhammad and another 2010 CLC 734; Muhammad Nawaz through
L.Rs. v. Haji Muhammad Baran Khan through L.R.s and others 2013 SCMR 1300; Abdul
Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Musaddaq Ali Khan,
and others v. Sharif Rahat Qureshi, and others NLR 2001 Civil 137; Karim Bakhash v. Gul
Rehman 1990 CLC 1200, Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs
and others PLD 2011 SC 241; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31;
China International Water v. Pakistan Water and Power Development Authority PLD 2005
Kar. 670; Inayat Ullah Khan v. Obaidullah Khan and others 1999 SCMR 2702 and Mst.
Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816 ref.

(b) Civil Procedure Code (V of 1908)---

----S.115---Revision---Interference in concurrent findings on facts by courts

below---Scope---Concurrent findings on facts not to be interfered in routine but in an
extraordinary circumstances when courts below had committed serious jurisdictional error or
legal infirmity.

​ Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue
and others 2014 SCMR 914; Cantonment Board through Executive Officer Cantt. Board,
Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Mst. Zaitoon Begum v. Nazar
Hussain and another 2014 SCMR 1469; Noor Muhammad and others v. Mst. Azmat-e-Bibi
2012 SCMR 1373; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR
984; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008
SCMR 428 and Abdul Ghafoor and others v. Kallu and others 2008 SCMR 452 rel.

​ Malik Noor Muhammad Awan and Ejaz Ahmad for Petitioners.

​ Naveed Shaheryar Sheikh and Fayyaz Ahmad Kaleem for Respondents.

​ Date of hearing: 3rd June, 2015.

JUDGMENT

​ ALI AKBAR QURESHI, J.---Through this single judgment, I intend to dispose of

this petition along with C.R. No.300 of 2003, titled "Haji Ghulam Muhammad (deceased)
through L.Rs. v. Muhammad Tofail and another" arisen out of the consolidated judgment and
decree dated 06.01.2003 and 16.02.1993, passed by the learned Courts below.

2. This civil revision is preferred against the concurrent findings recorded by the learned
Courts below while dictating consolidated judgment dated 06.01.2003 and 16.02.1993, in the
following two suits; whereby the suit for specific performance, filed by the present
respondents, was decreed, whereas the suit for possession, filed by the present petitioners,
was dismissed.

(1) Tahir Mehmood v. Ghulam Muhammad

​
(Suit No.467/2001)

(2) Ghulam Muhammad v. Muhammad Tofail

​
(Suit No.468/2001)
​
Appeals:

(1) Ghulam Muhammad v. Tahir Mehmood

​
(Appeal No.82/1993)

(2) Ghulam Muhammad v. Muhammad Tofail

​
(Appeal No.83/1993)

3. The necessary facts for the disposal of this civil revision as well as C.R. No.300 of 2003
are that, a suit for specific performance of a contract regarding plot No.75, measuring 10
marla, situated in Block-II, Mundi Town Bhakkar, was filed by the respondent namely Tahir
Mehmood, against the petitioners, whereas the petitioners filed a suit for possession of the
suit land against the respondents.
​
In the suit for specific performance of the contract, the respondents have contended that the
petitioner Haji Ghulam Muhammad entered into an agreement for the sale of suit land for a
consideration of Rs.12,000/-, which was received by the petitioner, but thereafter refused to
execute the sale deed despite the fact, that the possession was handed over to the respondents
at the time of receiving the consideration. Further contended, that to resolve the controversy
with the consent of the petitioner, Haji Ghulam Muhammad, an arbitrator namely Tahir
Mehmood was appointed, who given the award in favour of the respondent/plaintiff, but the
same could not be made rule of the Court on a technical ground although the learned counsel
appointed by the petitioner namely Ghulam Muhammad recorded his conceding statement to
the effect, that the petitioner had no objection, if the award is made rule of the Court.
​
In a suit for possession filed by the petitioner namely Ghulam Muhammad, it was contended,
that the petitioner is owner of the suit land and the respondents had forcibly taken the
possession, which be declared unlawful.
​
The learned trial court consolidated both the suits, and from the divergent pleadings of the
parties framed as many as eleven issues, recorded the evidence of the parties and finally
decreed the suit "for specific performance of the contract" filed by the respondents, whereas
dismissed the suit "for possession" filed by the petitioners, vide consolidated judgment and
decree dated 16.02.1993.
​
Against the consolidated judgment passed by the learned trial court two appeals were filed by
the petitioners. The learned appellate Court after hearing the arguments of the parties
dismissed both the appeals through a consolidated judgment dated 06.01.2003. Hence, this
civil revision.

4. Learned counsel for the petitioners mainly argued, that the respondents could not prove the
oral agreement and the factum of arbitration proceedings in accordance with law as instead of
producing the original documents pertaining to the arbitration proceedings, certified copies
issued by the learned trial court were placed on record, therefore, this is sufficient to dismiss
the suit filed by the respondents. Further submits, that as the award was not made rule of the
Court, therefore, the same cannot be referred and if these documents are excluded from the
evidence, the respondents have no evidence to prove the oral agreement. Lastly, contended
that the oral agreement without consideration is void.

5. Conversely, learned counsel for the respondents seriously opposed the contentions
advanced by the learned counsel for the petitioners and submitted, that the respondents have
succeeded to prove their case through reliable and confidence inspiring evidence, therefore,
both the learned courts below rightly decreed the suit of the respondents and dismissed the
suit filed by the petitioners. Next contended, that even otherwise, both the learned Courts
below have recorded concurrent conclusion, therefore, in view of the principle laid down by
the Hon'ble Supreme Court of Pakistan in different judgments, cannot be interfered.

6. Heard. Record perused.

7. After careful perusal of the record collected by the learned trial court during the course of
recording the evidence of the parties, it appears that to resolve the controversy between the
parties, the record pertaining to the arbitration proceeding requires consideration. As per the
record, during the pendency of the suit, obviously with the intervention of certain people to
resolve the controversy amicably the matter was referred to a Salis for arbitration; the
arbitration proceedings were conducted by the Arbitrator/Salis appointed by the parties, who
gave the arbitration award on 25.02.1982, which was submitted under section 17 of the
Arbitration Act, 1940, for making it rule of the Court but the learned trial Court refused to
make the award, rule of the Court on the ground, that in fact the parties in order to avoid the
payment of government dues, have appointed the Salis. Now it is to be seen as to whether, the
respondents have succeeded to prove the aforesaid record including the arbitration
proceedings through the signatory and scribe to rebut the objection raised by the petitioners.

8. The record shows, that the arbitrator duly appointed by the parties, appeared in the witness
box and proved the arbitration award (Ex.D1); the scribe Shaikh Muhammad Akhtar of
award/Ex.D1 and Iqrarnama Taqarari Salis /Ex.D2, appeared in the witness box as DW3 and
proved the execution of the aforesaid arbitration proceedings. So much so, DW4 Malik
Ghulam Rasool, Advocate, also appeared and stated that he was appointed by the petitioner
namely Ghulam Muhammad and filed the conceding statement for making the award as rule
of the Court. The aforesaid documents which had been proved in accordance with law are
sufficient to prove, that the petitioner entered into an agreement for the sale of suit plot to the
respondent, received the consideration agreed between the parties and handed over the
possession to the respondents.
​
In this regard, I'm fortified by the esteemed judgment of the Hon'ble Supreme Court of
Pakistan titled "Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others" (PLD
1973 Supreme Court 160), wherein it is ruled, that except the judicial record, all other
documents, even if exhibited, can only be read in evidence if the signatory or the scribe
appeared in the Court. Relevant part of the judgment (supra) is reproduced hereunder:--
​
"When I say that the document Exh. P. E. is unproved, I have in mind the mandatory
provisions of section 67 of the Evidence Act, which lay down that "if a document is
alleged to be signed or written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that person's
handwriting must be proved to be in his handwriting". If the case of the respondent
was that the appellant had signed the original of Exh. P. E. or the certificate appended
to it, it must have been proved that it was in the appellant's handwriting, for which no
effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode
Saha & Co., this Court had expressed itself on this point as follows:-
​
"Documents which are not copies of judicial record, should not be received in
evidence without proof of signatures and handwriting of persons alleged to have
signed or written them."
​
I am of the view that even if such documents are brought on record and exhibited
without objection, they remain on the record as "exhibits" and faithful copies of the
contents of the original but they cannot be treated as evidence of the original having
been signed and written by the persons who purport to have written or signed them,
unless the writing or the signature of that person is proved in terms of the mandatory
provisions of section 67 of the Evidence Act."

9. Learned counsel for the petitioners vehemently argued; that the respondents have failed to
produce the original record pertaining to the arbitration proceedings. The record depicts that
the respondents annexed all the original record pertaining to the arbitration proceedings, with
the application filed before the learned Senior Civil Judge, Bhakkar, for making the award
rule of the Court, and produced the certified copies duly issued by the learned Civil Court of
the aforesaid record and further, also produced the scribe and signatory of those documents,
therefore, the objection raised by the learned counsel for the petitioners has no substance. The
learned counsel for the petitioners while arguing the case has referred the following
judgments:--
​
"Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others" (2007 CLC 1372),
"Bashir Ahmad and 21 others v. Shah Muhammad and another" (2010 CLC 734),
"Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and
others" (2013 SCMR 1300), "Abdul Ghani and others v. Mst. Yasmeen Khan and
others" (2011 SCMR 837), "Musaddaq Ali Khan, and others v. Sharif Rahat Qureshi,
etc." (2001 CLC 551), "Karim Bakhash v. Gul Rehman" (1990 CLC 1200), "Hafiz
Tassaduq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 SC
241), "Maqsood Ahmad and others v. Salman Ali" (PLD 2003 SC 31), "China
International Water v. Pakistan Water and Power Development Authority" (PLD 2005
Karachi 670), "Inayat Ullah Khan v. Obaidullah Khan and others" (1999 SCMR
2702), "Mst. Farida Malik and others v. Dr. Khalida Malik and others" (1998 SCMR
816) and submitted, that as the respondents had failed to prove the oral agreement, the
agreement of reference, award was not made rule of the Court has no value, the
arbitration proceedings being disputed document cannot be made basis for decision of
the case and the award which is a judgment, should be written by the judge not by any
 other.
​
The esteemed judgments referred by learned counsel for the petitioners were perused
but those are not helpful to the petitioners as the respondents through reliable, cogent
and confidence inspiring evidence had successfully proved the appointment of
Arbitrator/Salis, proceedings of the arbitration and award announced by the arbitrator.
​
It is also notable here, that the petitioners did not file the objection under section 30 of
the Arbitration Act, 1940, at the time when the award was submitted before the
learned trial court for making it rule of the Court, meaning thereby, that the petitioner
had admitted the award, therefore, at this belated stage is not permitted to raise any
such objection.

10. The learned trial court as well as the learned appellate court as manifest from the record
of the case, rightly reached to the conclusion that the respondents have succeeded to prove
the case for specific performance of the contract, therefore, the petitioner namely Ghulam
Muhammad was not entitled to ask for the possession of the disputed plot. Further, after
giving my anxious consideration, I myself have reached to the conclusion, that the petitioners
have miserably failed to defend the suit filed by the respondents and prove their own suit for
possession and because of the malicious attitude of the petitioners, the litigation remained
pending for decads.
​
Although the learned counsel for petitioners argued the case at some length but could not
point out any illegality, infirmity or irregularity in the impugned judgment with regards the
concurrent conclusion rendered by learned Courts below or that the judgment and decree is
result of misreading and non-reading of evidence. Even otherwise, as ruled by the Hon'ble
Supreme Court of Pakistan, that the concurrent findings on facts should not be interfered in
routine, but in an extra ordinary circumstance, when the learned courts below have
committed serious jurisdictional error or legal infirmity.
​
I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, in the
case of Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue
and others (2014 SCMR 914), Cantonment Board through Executive Officer Cantt. Board,
Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar
Hussain and another (2014 SCMR 1469), Noor Muhammad and others v. Mst. Azmat-e-Bibi
(2012 SCMR 1373), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010
SCMR 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another
(2008 SCMR 428), and "Abdul Ghafoor and others v. Kallu and others" (2008 SCMR 452),
that the High Court, in the case of concurrent findings, normally does not interfere unless the
same is result of exercise of jurisdiction not vested in the learned courts below.

11. In view of the above, I see no reason to interfere with the concurrent findings rendered by
the learned courts below. Resultantly, this revision petition alongwith C.R. No.300 of 2003,
stand dismissed, with no order as to cost.

RR/G-26/L​ ​ ​ ​ ​ ​ ​ ​ Revision dismissed.