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Petitioner: Sh. MUHAMMAD FAZIL VS Respondent: Sh. ABDUL QADIR And 7 OTHER
Court Name: Lahore High Court Judge(s): Amir Alam Khan Title: Sh. MUHAMMAD FAZIL vs Sh. ABDUL QADIR And 7 OTHER Case No.: First Appeal from Orders Nos. 189, 190, 192 and 193 of 1975 Date of Judgment:1996-08-05 Reported As: 1997 CLC 243 Result: Case remanded
JUDGMENT
JUDGMENT This judgment will dispose of F.A.Os. Nos. 189, 190, 192 and 193 of 1975 as common questions of fact and law are involved therein. 2. These first appeals are directed against the order dated 29-7-1975 passed by the learned Civil Judge 1st Crass, Sialkot whereby application of the appellants seeking to resile from the offer of oath were dismissed and simultaneously the suits of the plaintiffs/appellants in FAO No.189/75 and the petitions under section 33 of the Arbitration Act, 1940 and another petition under section 14/17 of the said Act were disposed of in terms of the statement on oath made by Sh. Manzoor Elahi the original respondent No:5. 3. The dispute forming subject-matter of the appeals noted above has a chequered history of its own which may be summarised as under:-- (i) Sh. Muhammad Fazil the original appellant in Appeal No.189/75 and the original respondents in the said appeal (most of them have died and are now being represented by their legal representatives) constituted a firm on 26-4-1951 under the name and style of Mehandru Rattra & Company and started to manage and run the same as per terms agreed amongst them. It was on 1-9-1969 that the plaintiff-appellant in Appeal No.189/75 filed a suit for dissolution of abovesaid firm as also rendition of accounts on the ground that the other partners had mismanaged the affairs thereof and had also misappropriated certain amounts to their personal use. The said' suit was contested between the parties but by an agreement dated 15-12-1969, the parties to the suits agreed to refer the dispute forming subject-matter of the suit to the Arbitration of four nominated Arbitrators and a Sarpanch. The above-referred agreement was filed in Court and it was thereafter that the statements of the parties to the suit were recorded and the matter was referred to the
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named Arbitrators. In pursuance of the agreement aforenoted as also - the order passed by the Court, the named Arbitrators entered upon the reference and it was during the course of proceedings before the Arbitrators that the parties to the suit as also some other persons entered into a fresh agreement dated 10-4-1970 thereby superseding the earlier agreement but at the same time consenting that the dispute be decided by the same Arbitrators as also the Sarpanch named in the earlier agreement. The scope of the dispute as also that of the Arbitration was enlarged. It appears that this second agreement was not filed in Court though the Arbitrators continued to seek extension from the Court for the purpose of making an award in regard to the dispute between the parties to the suit as also the other parties added in the said second agreement. In any case the award was finally announced on 22-7-1970 and the same was filed in Court on 30-7-1970 by Haji Muhammad Siddique i.e. One of the nominated Arbitrators. The Court invited the objections to the award whereupon the plaintiff/appellant in Appeal No.189 of 1975 and the original defendants Nos.1 to 5 (now respondents in the original appeal) filed the same in Court thereby praying that the award be set aside. The other defendants i.e. 6 to 8 however, did file any objection to the award and as a matter of fact requested that the same .Be made rule of the Court. It would also be relevant to mention here that Sh. Manzoor Elahi one of the original defendants (respondent No.5 herein) filed an application under Order XXIII, Rule 3, C.P.C. With the prayer that since the parties have consented to the award, therefore, the suit should be adjusted and disposed of in accordance therewith. The matter was still pending when one Shafiqur Rehman not a party to the suit but a signatory and party to second agreement filed an application under section 33 of the Arbitration Act, 1940 thereby praying that the second agreement as also the award be declared to be invalid. Similarly placed Sh. Abdul Qudus filed an application under sections 14/17 of the said Act thereby praying that the award dated 22-7-1970 be made rule of the Court. The above-referred suit and the applications under the Arbitration Act were still pending when Sh. Muhammad Fazil, the original appellant in Appeal No.189/75 made a statement in Court on 12-3-1973 that if Sh. Manzoor Elahi the original defendant/respondent No.5 opts to make a statement on Holy Quran, the suit filed by him may be disposed of in terms of the statement. This offer of the original plaintiff/appellant was joined and adopted by Sh. Abdul Wahid original defendant No.4 on his behalf as also on behalf of defendants Nos. l to 3 while Manzoor Ahmad Bhatti, Advocate for Shafiq-ur-Rehman i.e. Petitioner in application under section 33 of the Arbitration Act as also Farooq Sethi, Advocate for Sh. Abdul Qudus i.e. Petitioner in application under sections 14-17 of the Arbitration Act also joined and adopted the said offer. Ch. Mohammed Safdar, Advocate for respondents Nos. 10 to (sic) in the petition under section 33 of the Arbitration Act also made a statement to the similar effect thereby agreeing that the three proceedings noted above be disposed of in the term of statement to be made by Sh. Manzoor Elahi. This part of the case having been completed the learned trial Court decided to put the offer to Sh. Manzoor Elahi, original defendant No.5 who proceeded to accept the same in the following terms:------ "Statement of Manzoor Ahmad defendant No5 on S.A.: I have carefully heard and understood the offer made by the rest of the parties and their counsel today. I agree to take the proposed oath on the Holy Book, but need time to work out the amounts, if any, due to the respective parties. I will be able to make statement by the middle of September when I state on the Holy Book as to what, if any, is due to the parties to the litigation. " It was on the same day that the three proceedings noted above were consolidated and it was ordered that further proceedings will be taken in the civil suit filed by the original plaintiff/appellant. In view of the statement of Sh. Manzoor Elahi the case was adjourned to 18-9-1973 on which date the said Sh. Manzoor Elahi was directed to make a statement on oath but before the abovesaid oath could be taken some of the defendants namely Abdul Qadir, Abu Bakar and Muhammad Aslam filed an application under section 151, C.P.C. Thereby alleging that they had never instructed
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or authorised their counsel, Ch. Muhammad Safdar, Advocate, to make the statement that they would be bound by the oath of Sh. Manzoor Elahi. It was prayed that the said statement be struck off the record and the case be decided on its own merits. On the same date i.e. 26-7-1973 another application was filed by M/s. Javed lqbal, Parvaiz lqbal and Mst. Razia Begum wherein it was submitted that they had never permitted and authorised either Sh. Abdul Wahid defendant No.4 or Ch. Muhammad Safdar, Advocate to make the statement that they would be bound by oath of Sh. Manzoor Elahi. It was further asserted in the said application that their Advocate had given the statement without their knowledge and consultation and to cap it all, it was specifically pleaded that they had no faith in the integrity and honesty of Sh. Manzoor Elahi, hence prayed that the said statement be struck off the record and the matter be decided in accordance with law. In these circumstances the learned trial Court directed Ch. Mohammed Safdar to appear and file his comments in regard to the abovesaid application who in turn submitted the same on 18-9-1973 by maintaining that the proceedings were being defended by Sh. Abdul Wahid original defendant No.4 and that he had made statement under his instructions alone. It was thereafter that the learned trial Court directed the original appellant i.e. Plaintiff in the suit and the other parties to submit their replies to the abovesaid application. The same were filed on 5-11-1973 wherein the stand taken by the original plaintiff/appellant and Sh. Abdul Wahid defendant No.4 was to the effect that a quarrel had taken place between Sh. Manzoor Elahi, the offeree of the oath, and his brother Sh. Abu Bakar defendant No.3 as also Sh. Zia-ur-Rehman in the office of Income Tax Officer, Sialkot and because of the resultant tension the relations between the parties had extremely worsened, therefore, they no longer repose confidence in Sh. Manzoor Elahi, they be allowed to revoke the offer earlier made by them. It would be pertinent to mention here that Shafiqur Rehman i.e. Petitioner in application under section 33 of the Arbitration Act and respondents in other proceedings also sought permission to revoke his offer on the similar grounds. Abdul Karim original defendant No.7 also filed an application on somewhat similar grounds alongwith the added assertion that respondent No.5 who was his real brother had obtained signature on the Vakalatnama for contesting the cases but since one and the same counsel represented him and Sh. Manzoor Elahi, the offeree of the oath, therefore, the offer carrier made by the said counsel may be allowed to be revoked. The said respondent also asserted that he had no confidence and faith in the integrity and honesty of Sh. Manzoor Elahi as according to him he had reason to believe that Sh. Manzoor Elahi would make a false statement. He prayed that the statement of Sh. Manzoor Elahi may not be recorded and the case be decided on merit. 4. The abovesaid order has been assailed in the present appeals by Sh. Muhammad Fazil the original appellant/plaintiff in the suit for dissolution of partnership and rendition of accounts (F.A.O. No.189/75) Javed Iqbal and 2 others (F.A.O. No.190/75) and Sh. Abdul Qadir and 2 others (F.A.O. No.192/75) as also by Shafique-ur-Rehman i.e. Petitioner in petition under section 33 of the Arbitration Act (F.A.O. No.193/75). 1 intend to dispose of the abovesaid appeals by this single judgment. 5. Learned counsel for the respondents has raised a preliminary objection as to maintainability of the appeals, therefore, it would be expedient to dispose of the said objection in the first instance. It was submitted that excepting F.A.O. No.193/75, all the persons who were parties to the original dispute referred to the arbitrators had not been impleaded as parties to the other appeals i.e. F.A.Os. Nos. 189, 190 and 192 of 1975, therefore, the same are not properly constituted and are liable to be rejected in view of provisions of Order XLI, Rule 3, C. P. C. As for F. A. O. No. 193 of 1975 was concerned it was submitted that although all the required parties were impleaded therein yet the certified copy of the judgment impugned in the said appeal was not produced and since no order on the application seeking dispensation thereof has been passed, therefore, the said appeal is also liable to be rejected because of the said reason. Another limb of the same objection was to the
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effect that certified copies of the decree---sheet were not appended with F. A. Os. Nos. 190 and 192 of 1975, therefore, on this score also the said appeals could not be deemed to have been properly constituted. It was lastly urged that in any case the decree having been passed in the case no appeal from the order was competent. All in all it was submitted that by one reason or the other the appeals having not been properly constituted or competently field the same should be out- rightly rejected or dismissed. Learned counsel for the appellants, on the other hand, contested the objection on the ground that this being a case of consolidated hearing, the objection as to maintainability is absolutely misconceived and since an appeal is provided against the order recording compromise or adjustment of suit, therefore, no valid objection could be taken in regard to filing of appeal against such an order. Reliance was placed on Haji Sikandar v. Malik Khan Muhammad and others 1973 SCMR 420 and Mst. Chawli and another v. Kidar Nath AIR 1938 Lahore 350 as also Jarnail Singh v. Mst. Narain Kaur and others AIR 1938 Lahore 766. PLD 1989 SC 532. He however, insisted that the provisions of Rule 20, of Order XLI, C.P.C. Would not come to the aid of the appellants inasmuch as all the appeals noted above remained pending for about twenty years yet no effort was made by the appellants either to implead all the parties in the appeals or to rectify the errors as pointed out by him. The objection of the learned counsel for the respondents are not well-founded. It is an admitted position of fact on the record that the suit filed by the appellants in F.A.O. No.189/75 was consolidated with the petition under section 33 of the Arbitration Act and the other petition under sections 14 and 17 of the said Act whereafter the proceedings were taken in the suit filed by Sh. Muhammad Fazil and the dispute was ultimately disposed of by the learned trial Court by way of a consolidated judgment. Various parties being aggrieved of the judgment passed by the learned trial Court had proceeded to file four appeals which were heard together and are being disposed of by this single judgment. It is not denied that in one of the appeals all the parties were arrayed either as appellants or as respondents meaning thereby that all parties were duly represented before this Court. It was held in the case of Said Muhammad supra that the Court is vested with ample powers to add any party even though the limitation for filing the appeal had already run out. The purpose behind the suo motu powers is not only to condone the delay but also to avoid technicalities, for the laws or procedure are meant for advancement of justice and not for denying it. In the instant case impleadment in each and every appeal may not be required for the particular reasons that the appeals are being heard together and all the parties are represented in one appeal or the other. This is the advantage of consolidated hearing of the appeals which cannot be denied in the peculiar circumstances of this case. Again it is not denied that certified copies of the judgment had been filed alongwith the three appeals while in the fourth an uncertified copy thereof had been appended with the appeal with an application seeking dispensation from the filing of certified copies thereof. All the parties being present before this Court and the certified copy of the judgment impugned in all the appeals being available on the record in one appeal or the other, it would be hypertechnical to reject one of the appeals on this ground and decided the other on merits. Since all the parties have been represented and the certified copy of the judgment is also available on the record, therefore, the defect, if any, in the appeals as pointed out by the learned counsel for the respondents stood cured. I am fortified in this view by the judgment of the Supreme Court reported as Haji Sikandar v. Malik Khan Muhammad and others (1973 SCMR 420) wherein the Supreme Court having considered the various judgments available on the subject proceeded to distinguish them on the ground that where the proceedings are consolidated and appeals are heard together, the defect of non-impleadment of a party is cured because of the reason of its being present before the Court in the connected matter. The dictum is one of wisdom, therefore, respectfully following the same I hold accordingly. Faced with this situation the learned counsel for the respondent fell back upon the rule of law laid down in an earlier judgment of the Supreme Court reported as
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Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan etc. (PLD 1964 SC 590) to contend that limitation for filing the appeal having expired no party could be allowed to be added to the appeal unless it is shown that the mistake in not impleading the said party is bona fide. I am afraid the reliance of the learned counsel for the respondent on the above-cited judgment is not very apt. The rule of law laid down in the above judgment is not at all attracted in the facts and circumstances of the present case for the particular reason that these appeals are being heard together and all the parties are represented in one appeal or the other. Needless to add that this judgment had also been considered and distinguished in the case of Haji Sikandar as noted above. All said and done, the total argument of the learned counsel for the respondents is fundamentally at odds with the provisions of Rules 4 and 33, of Order XLI, C.P.C. It has been provided under Rule 4, Order XLI, that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants, any one of the plaintiffs or of the defendants could file an appeal from the whole decree and thereupon Appellate Court could reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be even though only one of the plaintiffs or the defendants had appealed against the said decree while Rule 33 of the same Order provides that the Appellate Court could pass any decree and make any order which ought to have been passed or made and could also pass and make such further or other decree or order as the case may require and this power may be exercised by the Appellate Court notwithstanding that the appeal is as to a part only of the decree' and may also be exercised in favour of all or any of the respondents or parties although such respondent or party may not have filed any appeal or objection. The wisdom of the two rules quoted above is so obvious that the result now being sought to be achieved by filing four appeals could also be achieved if only one appeal had been filed by any one of the parties to the suit because the order impugned in the appeals proceeds on the ground common to all the parties and in a case of the nature, the Appellate Court is vested with the power to pass any decree or make any order which ought to have been passed and made or even make such further order as the case may require notwithstanding that the other parties had not appealed or filed any objection against the said order. Reference may be made to Punjab Road Transport Board through its Chairman v. Abdul Ghafoor and 6 others (PLD 1989 SC 541). The learned counsel for the respondent being steadfast in his objections still maintained that in any case since in the F.A.O. 193/75 no order as to dispensation of filing of certified copy of the judgment impugned therein was passed nor the certified copy of the judgment was placed on the record within the time prescribed for filing the appeal, the appeal itself had patently become barred by limitation, therefore, the same should be dismissed as such. Reliance was placed on Mst. Safia Begum v. Taj Din and another (1990 CLC 1503). It was a case of second appeal wherein it was held that the filing of the certified copy of judgment of the Court of first instance being mandatory, the appeal could not be said to be properly constituted unless the requirement thereof had been dispensed with by the Court. The judgment is distinguishable on its own facts and is not applicable in the peculiar facts and circumstances of the case. As already observed the certified copy of the judgment impugned in these appeals is available on the record because of the consolidated hearing, therefore, the ratio of the case Haji Sikandar, though in different context, would be available in answer to this limb of the objection as well. 6. As for the objection that certified copies of the decree-sheet had not been appended with F.A.Os. 190 and 192 of 1975, suffice it to say that the said appeals had been preferred against the order adjusting the suit in view of the statement made by Sh. Manzoor Elahi, therefore, the filing of the decree-sheet was not at all required. Manifestly the appeals were preferred against the order adjusting the suit and not against the decree that followed, therefore, it could not be successfully argued that non-filing of the decree would be fatal to the appeals. Learned counsel for the
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appellant has very aptly relied on the judgments in the cases reported as Mst. Chawli and another v. Kidar Nath (AIR 1938 Lahore 350) and Jarnail Singh v. Mst. Narain Kaur and others (AIR 1938 Lahore 766) to contend that an appeal from an order recording a compromise having been provided under Order XLIII, Rule 1(m), C.P.C., there was no need to file the copy of the decree-sheet and the copy of the consolidated order satisfied the requirement of Order XLI, Rule 1, C.P.C. It was further observed that it was not necessary for the appellants to prefer an appeal both from the order and the decree passed in pursuance of the said order. The ratio of the two judgments noted above squarely meets the objection raised by the learned counsel for the respondents. 7. As far the merits of the case the learned counsel appearing on behalf of various appellants argued that it was manifestly a case where the parties seeking to resile from the offer of oath ought to have been permitted to do so because of the facts available on the record. It was mainly submitted that Ch. Muhammad Safdar, Advocate was definitely not authorised or instructed by Javed Iqbal, Parvaiz Iqbal and Mst. Razia Begum i.e. Respondents Nos. 14 to 16 in petition under section 33 of the Arbitration Act as also respondents Nos.7 to 9 in petition under sections 14 and 17 of the said Act to make a statement thereby adopting the statement of Sh. Muhammad Fazil, plaintiff in the suit for dissolution of partnership and rendition of accounts, whereby it was offered that if Sh. Manzoor Elahi (defendant No. 5 in the suit referred to above) opts to make a statement on Holy Book, the suit filed by said Sh. Muhammad Fazil be disposed of in terms thereof. In amplification of the argument the two powers of attorney executed by the abovesaid parties thereby authorising Ch. Muhammad Safdar, Advocate to conduct the case on their behalf were also referred to maintain that the said powers of attorney were not routine and usual powers of attorney which are normally executed and filed in Court for the prosecution of civil cases as according to the learned-counsel, the said powers of attorney simply authorised Ch. Muhammad Safdar to plead and act as an advocate on behalf of the said parties. The only other power as incorporated in the said power of attorney was to the effect that the said Advocate was authorised to withdraw or to receive any sum or amount deposited in the account of his clients. It was submitted that apart from the fact that Ch. Muhammad Safdar, Advocate was not authorised or instructed to make such a statement, the said powers of attorney could not be deemed to have authorised the said learned Advocate even impliedly to make such a statement. Learned counsel further referred to the comments filed by Ch. Muhammad Safdar, Advocate, in regard to the application filed by the abovesaid respondents to submit that the said learned counsel had very candidly conceded that he had made that statement on the instructions of defendant No.4 i.e. Sh. Abdul Wahid who had been defending the cases. It was vociferously maintained that said Abdul Wahid was neither an attorney of the abovesaid respondents nor it has been shown on the record that he was ever instructed by the saia respondents to impart such instructions. Learned counsel appearing on behalf of the legal heirs of Sh. Muhammad Fazil having adopted and supported the abovesaid arguments maintained that the offer of oath as originally made was to the effect that if Sh. Manzoor Elahi opts to take oath on Holy Book the suit filed by the said original plaintiff (appellant in this appeal) be disposed of in terms thereof while the record shows that Sh. Manzoor Elahi did not make any statement in regard to the questions involved in the suit nor, as a matter of fact, the suit has been disposed of: The precise submission was to the effect that the oath having not been taken in accordance with the offer the same could not form basis of the decision. It was submitted that the oath of the opposite-party to be binding must always be administered and taken in accordance with the offer and not otherwise. It was also argued that the period of almost two years taken between the offer of oath and the administration thereof was a negative feature and the same ought to have been considered while disposing of the application seeking to resile from the offer particularly when it had been brought to the notice of the Court that parties had quarrelled with each other with the result that the relations between them had worsened. The
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