1
4
IN THE SUPRE COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
MR. JUSTICE UMAR ATA BANDIAL
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE JAMAL KHAN MANDOKHAIL
civil Petition No.1193/?020
n appeal from the Ordor dated 112.2020 passed by the Lahore High Court. Lahore fl
(O 
C,R.No.76197/2019)
Misbah Khanum 
..Petitioner
Versus
Karnran Yasin Khan and another 
...Respondeflts
For the Petitioner 
Mr. Kamrafl Murtaza, Sr. ASC
Respondent-i.: Mr. Rashid Mehmood SindhU ASC
Respondent-2 
Anis-Ud-Din, ASC
Date of hearing: 26,10.2021
JUDGMEfl
MAZHAR ALAM KHA.N M!ELJ.. The
Respondent No.1 filed a suit against the present Petitioner for
specific performance of an agreement to sell dated 27
September, 2012 regarding a residential house built upon Plot
No.143/B situated in Nazimabad, Faisalabad, owned and
possessed by present Petitioner i.e. Mst. Misbah Khanurn (Misboh
Aziz). The Respondent No.2 (the real son of the petitioner) appearing
as a special attorney in the said ease, recorded a conceding
 statement before the Trial Court and on the basis 
of that
Civil Petition No. 1193/2020 
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statement, the Court passed a Decree in favour of Respondent
No.1 vide its Judgment dated 9th October, 2013 (the Decree laterly
drawn on 14th March, 2014 and such delay per Se will have no adverse effect on
the matter before us) subject to payment of balance sale amount of
Rs.6,00,000/- (Six Lac) within a month. The Respondent No.1,
despite decretal of his suit, filed an Appeal by alleging that his
payments made earlier, amounting to Rs.36,00,000/- (Thirty-Six
Lac) have not been referred to in the Judgment. The Appellate
Court allowed the Appeal of the Respondent No.1 vide its
Judgment dated 23rd January, 2014 (the Decree in Appeal, too was
drawn laterly on 9"' December, 2019 but this delay will also not affect the merits
of the case before us) that too on the basis of yet another conceding
statement of the even date, made by Respondent No.2 as attorney
of present Petitioner by confirming the receipt of balance amount
of Rs.6,00,000/- (Six Lac). It is not out of context to mention here
that the Decree Sheet in Appeal was not prepared by the
concerned Clerk at the time of decision of Appeal and the same was
got prepared on the basis of a separate Order dated 9 th December,
2019 of the Appellate Court passed on the application made by
Respondent No.1 in this regard as the Order of the alleged
acceptance of Appeal was not being executed in absence of the
Decree Sheet. The delayed preparation of Decree Sheets (bcth the
Thai Court and the Appellate Court, as stated above, will have no bearing
on the merits of the case before us and is immaterial.
2. 
The Respondent No.1, after getting Decree in his
favour by the Appellate Court filed an execution petition dated 19th
February, 2014. The Petitioner on getting knowledge of the Decree
against her, initially filed a suit for declaration, challenging the
Civil Petition No. 1193/2020 
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a very agreement to sell dated 27th September, 2012, special power
of attorney in favour of Respondent No.2, her real son. This suit of
the Petitioner was rejected vide Judgment and Decree dated 4th
January, 2017 under Order VII Rule 11(d) of Code of Civil
Procedure, 1908 (CRC.) being barred by law (Section 11 C.P.C).
However, the learned Judge in its Judgment ibid, made a reference
regarding pendency of an application under Section 12 (2) C.P.C.
Filed by the present Petitioner. But the record available before us
would reflect that the said application under Section 12(2) C.P.C.
was against the initial Decree for specific
performance of agreement and the same after a full-fledged trial
and at the time of final arguments, was dismissed as withdrawn
subject to payment of costs of Rs.15,000/- vide Order dated 18th
October, 2019 as yet another application at the same time with the
same relief i.e. under Section 12(2) C.P.C. was pending
adjudication before Additional District Judge, Faisalabad wherein
the Decree of the Appellate Court was challenged.
3.
The learned Additional District Judge, Faisalabad after
hearing the parties, dismissed the said application under Section
12(2) C.P.C. vide its Judgment dated 9th December, 2019. The
Petitioner feeling aggrieved, filed a Civil Revision before the High
Court but this too, met the same fate of dismissal by the learned
Judge in Chambers of the High Court vide impugned Judgment
dated 11 th February, 2020.
4.
The Petitioner still not satisfied, has questioned the
impugned Judgment by invoking the jurisdiction of this Court
under Article 185(3) of the Constitution of the Islamic Republic of
I
Civil Petition No. 119312020 
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Pakistan, 1973 through instant Petition for grant of Leave to
Appeal.
S. We have heard the learned counsel for the parties and
have gone through the entire record including the original record
of different files requisitioned vide Order dated 21st September,
2020 of this Court. The record of the case would reveal that the
Petitioner is an old and illiterate lady who became owner of the
house in question way back in the year 2006 and this very fact is
not disputed.
The dispute/ controversy in hand, arose when she
got knowledge about the transfer of her house through a Decree
for specific performance in favour of Respondent No. 1. After
getting this knowledge, (though no specific date of knowledge
apparently reflects from the record but all the proceedings
initiated by her i.e. the civil suit and both the applications under
Section 12(2) C.P.C. are within the prescribed period of
limitation, so, non-mentioning/non-appearance of exact date of
knowledge would become immaterial as date of knowledge is
normally required for calculating the period of limitation). No
doubt, on the basis of legal advices available to her, she filed a
civil suit referred to above and also an application under
Sectionl2(2) C.P.C. before the Trial Court which, ultimately was
dismissed as withdrawn, as referred to above, because of
pendency of yet another application under Section 12(2) C.P.C.
before the Appellate Court. The reason for filing two different
pplications might be on the assumption that there is no legal
Civil Petition No. 119312020 
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bar in availing two or more available remedies even before
different forums simultaneously and whichever is decided earlier
would make the other/others redundant/infructuous or because
of a legal apprehension in her mind regarding the
appropriate/ultimate forum for filing of an application under
Section 12(2) C.P.C. in view of the Judgment of this Court in the
case of Maharunisa v. Ohulam Sughran (PLD 2016 SC 358) as
there was yet another Decree of the Appellate Court dated 23rd
January, 2014 which finally decided the controversy between the
parties and the Judgment and Decree of the Trial Court was
merged in the latter Judgment and Decree of the Appellate
Court. In view of law laid down in the case of Maharunisa supra,
the application under Section 12(2) C.P.C. before the Appellate
Court was maintainable. Withdrawal of her earlier application
under Section 12(2) C.P.C. before Trial Court and rejection of her
Civil Suit will have no adverse effect on her instant application
under Section 12(2) C.P,C. before the Appellate Court. It is also
settled law of the land that there is no legal bar for a party to
avail two or more available remedies under the law
simultaneously and a decision in any one of such remedies
availed would render the others as infructuous.
6. While coming to the merits of the case in hand, the
Petitioner has alleged fraud and misrepresentation for which, once
she filed a civil suit and also an application under Section 12(2)
C.P.C. before the Trial Court and also approached the Appellate
Court by challenging the Decree in Appeal through a separate
application under Section 12(2) C.P.C. would show that fraud has
Civil Petition No. 119312020
been committed with her and that too, by her husband and the
son by managing to get executed an agreement to sell, a deed of
special power of attorney and then by making a conceding
statement in the Court by her son on the basis of a special power
of attorney which she had categorically denied. She in her
statement recorded as AW-1, in the proceedings under Section
12(2) C.P.C. before the Trial Court (though withdrawn by her after the
trial but it was between the same parties and making its reference would
cause no prejudice to any of the party and is also available on the file, so,
this Court, in the circumstances, can take judicial notice of the same to do
complete justice between the parties) had categorically stated about a
similar fraud by the same persons regarding her other property i.e.
a shop, regarding which litigation was also pending between the
parties and said fact was also not confronted or cross-examined
which means, the Respondents had nothing to say anything in
denial or rebuttal. Yet another stance giving support to her
allegations, is the Decree for dissolution of her marriage which
resulted after all the mess referred to above occurred: That she
was so dis-hearted that she went on to break the marital bond
with her husband. Her son and the husband never appeared
before the Court in rebuttal of her allegations before any forum.
The Respondent No.1 remained in contest throughout and this
aspect alone would be sufficient to support the allegations of
Petitioner.
7. 
The most important legal aspect of the case which
went an-noticed by the Courts below is that the alleged
transaction was shown to be with an elderly, illiterate lady and the
I
Civil Petition No. 1193/2020 
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PI
Respondent No.1 being a beneficiary of the entire episode was
legally bound to prove the genuineness of the alleged transaction
in his favour. Law of the land places a heavy burden on the person
who is ultimately on the receiving end in such like transactions.
The said burden, as per record, has not been discharged by the
Respondent No.1 at all. The record would suggest that the initial
Decrees from both the Courts were based on the conceding
statements made by the son of the Petitioner, the alleged special
attorney on her behalf. The power of attorney present on original
file of the main suit for specific performance was even not
exhibited at the time of recording of the conceding statement of the
alleged attorney, who happens to be her son. Even at the time of
acceptance of Appeal, the photocopy of the said power of attorney
was placed on file but was not referred to or exhibited at the time
of recording that statement of the alleged attorney. Even reference
of the same was not made in the statement nor in the Order of the
Court. Such an authorization which lacks legal proof has no
evidentiary value and cannot be relied upon and considered in
evidence. Both the conceding statements, before the Trial Court
and that of the Appellate Court can at the most be considered as
the statements of 'Mud assar Ahmad Khan' (Respondent No.2), himself
and not as an attorney of the lady, his mother. The document
which is denied and under the contest, even if available on the
file/record cannot be looked into by the Court unless the same is
tendered in evidence, exhibited and proved in accordance with law.
This, in other words, would mean that there was no power of
attorney before the Court to look into. The Suit or the Appeal was
never contested. During the proceedings under Section 12(2)
Civil Petition No. 1193/2020 
S
-t
C.P.C. execution of both the documents, agreement to sell and the
special power of attorney was categorically denied by the
Petitioner. The agreement to sell in favour of Respondent No.1 was
not legally proved as per requirements of Article 79 and other
enabling provisions of the Qanun-e-Shahadat Order, 1984. If there
was no contest in the main suit and a categoric denial and a hot
contest in the proceedings under Section 12(2) C.P.C. then it was
for the Respondents to have proved both the documents in their
favour as they were the persons to get benefits on the strength of
these documents. Payment of sale consideration of Rs.42,00,000/-
(Rs. Forty-Two Lac) has been alleged but the same has also not
been proved in accordance with the law. There is not an iota of
evidence which could reflect that the alleged sale consideration
was ever received by the Petitioner. This aspect of the case alone
would be sufficient to nullify the Decrees in favour of the
Respondent No.1. These are the sufficient examples of fraud and
misrepresentation for the purpose of an application under Section
12(2) C.P.C. Even one of the ground of the three, if established on
the record, would be sufficient for setting aside such an Order,
Judgment and Decree etc.
8. The most important legal aspect which goes to the root
of the case is that the initial Decree on the basis of the Judgment
dated 9th October, 2013 was a conditional Decree. The Respondent
No.1 though was granted a Decree for specific performance but the
same was subject to payment of balance amount of sale
consideration amounting to Rs.6,00,000/-(Rs.Six Lac) within thirty
days (starting from the same date) and his failure in this respect was
Civil Petition No. 1193/2020
sufficient enough for dismissal of the suit in the light of an
unambiguous Order and legally no further Order for dismissal of
the suit was required. The record of the case would further reveal
that despite decretal of his suit, Respondent No.1 filed an Appeal
before the District Judge on 8th November, 2013. This Appeal was
against the Judgment and not against the Decree and non-filing of
Decree sheet even was not dispensed with by the Court, is
sufficient enough for its outright dismissal. It was in clear violation
of the mandatory provisions of Rule 1 of Order XLI of C.P.C. It was
for the office to have reported for such deficiency. This Appeal,
despite the above deficiency, was allowed once again on the
conceding statement made on 23rd January, 2014 by the alleged
attorney, none else but her son Mudassar Ahmad Khan, that he
has received the balance decretal amount of Rs.6,00,000/- (Rs.Six
Lac) and has no objection on acceptance of Appeal. Appeal was
allowed accordingly on the same day. Relevant text/Order is
reproduced here-in-below for ready reference:-
"In view of statement of above and in the interest
of justice, the instant appeal is accepted, as a result of
Which, the suit of the appellant stands decreed in
favour of the appellant/plaint ff and against the
respondent/defendant. There is no order as to cost.
Copy of the order along with record of trial Court be sent
back and file of appeal be consigned to the record room
after completion, within stipulated period.
Announced:
23.02.2024
Sd/ -
JamilAhmadCH.
Add!. District Judge,
Faisalabad".
Civil Petition No. 119312020 
10
9, No Decree Sheet was drawn in the light of above Order of
acceptance of Appeal. In absence of the Decree Sheet, execution
was not possible. So, the Respondent No.1 was compelled to file a
separate application before District Judge for preparation of a
Decree Sheet and ultimately Decree Sheet in Appeal was ordered
to be drawn on 9th December, 2019. His application in this regard
reflects that he has categorically written in Para-2 of the
application that he failed to deposit the decretal amount within the
prescribed time (Page 117 of Paper-Book of C.P.No, 1193/2020). The
record would further reveal that the operation of the initial
Judgment dated gth October, 2013 of Civil Judge was never
suspended by the Appellate Court. Since the original Appeal file
was not available along with other available files, so the same was
requisitioned through a special messenger. The record of the
Appeal file makes it abundantly clear that there was no stay Order
and operation of the impugned Judgment of 9th October, 2013 was
never suspended. The relevant documents reflecting the date of
filing of Appeal and all the Order Sheets are scanned herein as
part of this Judgment for ready reference: -
(Scanned documents overleaf.)
Civil Petition NoAI93/2020 
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Civil Petition No.) 193/2020 
12
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2013
NOV 
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It is afrsh apøeai. let it be registered.0 8 NOV 2013
08.112013.
Present: 
Cou' isel for the appe}lant,
1-b; tile pertains to the court of Mr. Imtiaz Hussain,
learned Addi District Judge, Faisalabad who ison leave today and
the rile was pit up before me as Duty Judge.
2. tiEs clvil appeal has been hed against the crier daceG 09
10-2013 pa;sed by Mr. Mumtaz Abmad, learned
',Civil' iUdQr
Faisalabad 'rhereby he decreed the suit subject to the condition that
the plaintiff will deposFt the rrnnainin; consideration amount of RS
lacs within 0 days.
3 
'tow to come up for prolimir1ary/rgUrfleflLc for IL-li-
2011
Announced, 
)
08.11203 
(Mci!wrnnfl?nlad Aflithan),
Duty )ndg.j/Mdl: üiWi Judge,
-- rMalab'th
Civil Petilion No. 1193/2020 
13
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3 NOV 2013
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10 DEC 201a
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17.12.2013,
Present: 
Mr. Sardar H atfs A]::d Amin Adv ibr appellant.
Mr. Frliwi Solcftfl Adv.  fik I Wa.kJ, L Name on behalf of respondeits.
Prelinijnn' arau nats heinj.
Points raised by .enrnd Cu, he! if appellant in die instant appeal needs
consideration, hence in Ow ntre of u.lic, instant appeal is adrniiled for
regular hearing jo come t.ji lor iruin.'s an 110,1 .204. Record of learned
lriI Cc,ur be also summered ft;r tic daa, [;%cd
Announced
17,12.2013,
JAMUI AHMAD CU,
Au D,stn' Judge
r 
F,i,soS,ad.
Jc5sbci't
j1
y7 -v 4of
HyF!L4
Civil Petition No.] 193/2020 
14
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OItDER.
In UCW 01 t.ilji1C ii U! ;t;ce wJ ii l' 
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appeal is iccepted. as a ft 'Pt olv flLh lic 41 
tile appcflant Suli
üi Ihvourof thc ppeIiaIit :iaiiitiflind igint thcpnLICIflhdCfrnda1t
is no order as to cost. (oyv ol tbt order iloiig" 
reord of trial Cnirl 
cui \
back and III , or appeal be cOib i.ed to the rec 
.10111 ailer cumpIcti.
wiihin stipulated 'eriot!.
Announced:
23.012014.
JAMtL ARMW CII.
AdUI. Di , Judge.
Civil Petition No 119312020 
15
This makes it clear that the balance decretal amount of
Rs.6,00,000/- (Rs.Six Lac) was neither deposited within thirty
days of the Judgment dated 9 th October, 2013 nor the same was
ever suspended by the Appellate Court. This non-compliance
would mean that the suit of the Respondents stands dismissed.
Once the suit stands dismissed, the conditional Decree also gets
buried with the suit. The acceptance of Appeal on 23rd January,
2014 on the conceding statement of the alleged attorney (much latter
than the specified period) can in no way resuscitate the already dead
suit. Before passing of the Decree in Appeal on 231d January,
2014, the original Decree of 9th October, 2013 had succumbed due
to its non-compliance within the given time. But this important
aspect of the matter was concealed and ignored by the so called
attorney and even not taken note of by the Court itself. It was also
for the Appellate Court to have asked for compliance of the Order
of deposit of balance amount. If the so called attorney was sincere
to his principal (his mother) he would have straight away taken the
plea of dismissal of the suit due to non-compliance of the Decree
within the stipulated time. It appears that the Appellate Court has
acted in a mechanical manner without application of its judicial
mind. The Court while deciding a matter, even on compromise or
on a conceding statement, has to see the legality and genuineness
of the issue brought before it. Acting in a mechanical manner
without application of judicial mind is not expected from a Judicial
Officer. This would also paint a picture of his competence and
conduct. This in other words means, playing with the rights of the
people which cannot be expected from a Judicial Officer. In the
. given circumstance, the suit of the Respondent No.1 stands
Civil Petition No. 1193/2020 
16
dismissed. No Decree in his favour remains intact in the eye of
law. Petitioner's ownership automatically stands restored with the
dismissal of the suit. We, in the circumstances, for safe
administration of justice, would like to observe that as per record,
the apparent alleged transactions, if any, were between the
Respondent No.1 and the Respondent No.2, the alleged attorney,
and if there is any exchange of money or agreement to sell due to
their mutual connivance and understanding, that would be
between them alone by excluding the Petitioner.
10.
Perusal of the impugned Judgments, especially that of
the Additional District Judge, is based on surmises and
conjectures and without any legal footing. It can in no way be
termed as a legal Judgment. Acceptance of Appeal by the
Additional District Judge in such a cursory manner would
encourage such type of people to play with the rights of the others.
Such type of Decrees cannot be given protection by the Courts
where the rights of a third party like the Petitioner are going to be
affected.
11.
For what has been discussed above, this Petition is
converted into Appeal and allowed. Consequently, impugned
Order/Judgment of the High Court and Appellate Court,
dismissing the application of the Petitioner under Section 12(2)
C.P.C. are set aside and the said application of the Petitioner
under Section 12(2) C.P.C. stands accepted and allowed.
Resultantly, the Order/Judgment dated 231d January, 2014 and
its Decree, latterly drawn, on 9th December, 2019 of Additional
istrict Judge, Faisalabad are set aside in view of the above
I I
Civil Petition No. 1193/2020 
U
t. discussion. The Judgment of the Civil Judge dated 9th October,
2013 and its Decree, latterly drawn, has died its natural death due
to its non-compliance which simply means there is no Decree in
the field. Needless to mention that by accepting application under
Section 12(2) C.P.C. and setting aside the Judgments and Decrees
of both the Courts, (the Trial Court and the Appellate Court); we are not
going to send back the suit for specific performance for a trial
afresh, as the suit itself stands dismissed for non-compliance of
the Judgment dated 9th October, 2013 and the Decree arising
thereof.
These are the reasons of our short Order dated 26" October,
2021 which is reproduced here-in-below:
"For reasons to be recorded later, this
petition is converted into appeal and allowe&.
(If the Judges of the Thai Court and the Appellate Court are still in service then
copies of this Judgment be tent to them).
Islamabad,
266h October, 2021
Sarfraz /-
Approved for reporting'
