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Before K. A. Ghani, J
SARDAR ALLY-Applicant
versus,
ABDUL GANI AND 5 OTHERS-Respondents
Revision No. 335 of 1978, decided on 8th November, 1986.
(a) Civil Procedure Code (V of 1908)---
----S. 115--Revrstonal jurisdiction, exercise of-Dispute in revision turning out solely on appreciation of evidence-Concurrent findings of Courts below on questions of fact, held, could not be set aside by high Court in revisional jurisdiction unless such findings were erroneous or suffered from infirmities.
Suleman and others v. Bagh Ali 1982 S C M R 938 rel.
(b) Civil Procedure Code (V of 1908)-----
------O. XXII, R, 4 & O. XII, R. 6-Raising of inconsistent pleas by legal representative-validity of-Legal representative, held, could not be allowed to set up a new case or raise pleas inconsistent with those taken by his predecessor in written statement filed in suit.
(Shrimant Kaur) Laxmanrao Bhonsley v. Narain and another A I R 1927 Nag. 162 ; Muhammad Natna Maracair on d others v. Ummanaikani Ammal and others A I R 1930 Mad. 593 ; Surendra Norain Sarbadhikari v. Bholaaarh Rov Chorvdhurv A I R 1943 Cal. 613 ; LakNhm' Narayan Khatri v. Gohal La" Pathak and another A I R 1943 Pat. 433 and Lai Hussain v. AmirMuhammad Khan curd another P L, D 1972 Lah. 256 rel.
Rao M. Shakir Nagshbandi for Applicant.
Kunwar Mukhtar Ahmad for Respondents Nos. 2 to 5.
Abdul Majeed Khan for Respondent No. 6.
Dates of hearing : 6th and 31st August, 1986.
This revision application has been preferred against the judgment and decree passed on 30th October. 1978 whereby the First Additional District Judge, Nawabshah, dismissed Civil Appeal No. 11 of 1975 and thus upheld the judgment and decree passed on 5-3-1975 by Civil Judge Moro dismissing Suit No. 23 of 1974 for specific performance and injunction filed by the applicant.
(i) The facts briefly stated are that the Respondent No. 1 sold the portion (hereinafter referred to as the property in suit) measuring 684 sq.ft of the plot bearing No. 11-C;3, situated at N1oro by a registered deed dated18-6-1973 for a lump sum consideration of Rs. 1800 to the respondent No. 2 (owner of the remaining portion of the same plot).
The applicant subsequently on 18-3-1975 filed the above referred suit alleging therein that the respondent No. 1 by an agreement made on 9-3-1971 had agreed to sell the said property to him and that having received the entire sale consideration (Rs. 2000), he was put in its possession. Further pleading that the respondent No. 1 had purchased the said property with the knowledge of the earlier subsisting agreement of sale, the applicant claimed decree for specific performance of the agreement and also prayed for grant of permanent injunction restraining the respondents from interfering with his possession.
Both the respondents denied the agreement of sale of which specific performance was sought and pleaded that the alleged agreement set up by the applicant was a forged document. Delivery of possession of the property by the respondent No. 1 to the applicant and payment of any consideration were also denied. The respondent No. 2 also pleaded that he had purchased the property in suit bona fide for valuable consideration without any notice of any alleged agreement with the applicant.
(ii) On the pleadings of the parties the Court framed the following issues :-
(1) Whether the defendant No. 2 contracted to sell the suit property to the plaintiff and if so, what is its effect
(2) Whether the defendant No. I purchased the suit property from the defendant No. 2 after having knowledge of the transaction of the suit property, between defendant No. 2 and the plaintiff
(3) Whether the agreement is a forged one and its effect
(4) What should the decree be
At the trial the applicant plaintiff besides himself examined one Yousif in support of his case. In their evidence the respondents supported the pleas raised in their respective written statements.
(iii) Both the Courts below on appreciation of the evidence on record held that the applicant failed to prove that the respondent No. 1 had executed the agreement of which specific performance had been claimed or that any amount towards consideration was paid. It was also held that respondent No. 2 had purchased the property in suit for value in good faith without any notice of the alleged prior agreement of sale.
2. Against the judgments and decrees given by the two Courts below, the applicant preferred this revision petition under section 115 Civil Procedure Code. The learned counsel for the applicant was unable to show that in giving the concurrent findings of fact as above mentioned the two Courts below exercised jurisdiction not vested in them by law or that they failed to exercise the jurisdiction so vested or to have acted in the exercise of the jurisdiction illegally or with material irregularity. In the circumstances, this revision application in which the same questions of fact on which after appreciation of evidence concurrent findings have been given a by the two Courts below cannot succeed in view of the principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Sidernan and others v. Bagh Ali (1982 S C M R 938).
4. The above discussion would have concluded this matter but at the last stage of his arguments the learned counsel for the applicant moved an application Order XII, rule 6, C. P. C.. supported by the affidavits of Sardar Ally, (the petitioner) and Muhammad Yasin one of the legal representatives of the respondent No. 1 who expired during the pendency of the case in this Court. Prayer has been made in the application that in view of the statements, made in the affidavits now filed in support of the above referred application by Muhammad Yasin and Muhammad Siddique the suit, may be decreed. No affidavit of the last named person however has been filed.
Before considering the arguments advanced by the learned Advocate for the applicant it may be observed that on the death of the respondent No. I Abdul Ghani (the seller) besides his two sons Muhammad Yasin and Muhammad Siddique his widow Mst. Fatima and Mst. Saira (daughter) have also been brought on the record by order passed in this case on 14-5-1980.
Mr. Rao M. Shakir Naqshbandi, the learned counsel for the petitioner in support of the above application submitted that M t1rai1tiuaJ Ya,ii7, was one of the witnesses who had attested the agreement of which specific performance was claimed in the suit. It was argued that though Muhammad Yasin was not examined in the trial Court but now being a party to this revision petition he has admitted that the said agreement was made by his father, late Abdul Ghani/the respondent No. 2 to sell the property in suit to the applicant. According to the learned counsel the statement in the affidavit of Muhammad Yasin amounts to an admission within the meaning of rule 6 of Order XII, C. P. C. and thus a-decree for specific performance of the said agreement is liable to be passed in favour of the applicant.
5. At the very outset it would be observed that Muhammad Yasin impleaded in this revision petition as a legal representative cannot in such a capacity be allowed to set up a new case or raise pleas which are inconsistent with those taken by his predecessor Abdul Ghani the respondent No. 1 in the written statement filed in the Suit. The view taken by me as above find, support from cases to some of which I may here refer :-
(i) In the case reported as (Shrimant Kaur) Laxmanrao Bhansler v. Narain and another (A I R 1927 Nag. 162) it was held that a legal representative must continue the litigation on the cause of action sued upon and he cannot set up or agitate a new right of suit or his own individual right.
(ii) In the case of Muhammad Naina Maracair and others v. 'Umni anaikani Ammal and others (A I R 1930 Mad. 593) repelling the contention raised that legal representative having been brought on the record would enable him to agitate his own claim even if that involved taking up a position and urging contentions contrary to those of his predecessor in the plaint, the learned Court held that he was not entitled to do so as he was in law, from the legal position he held in that case was strictly confined co the pleadings and the case of his predecessor whose legal representative he was. It was further observed that any right he had above and beyond those to which he succeeded in that case as legal representative he must agitate elsewhere.
(iii) In the case of Surendra Narain Sarbadhikari v. Bholanath Roy Chowdhury (A I R 1943 Cal. 613) it was held that the legal representative of the deceased defendant is bound to adopt the written statement of the latter and that he could not at the appellate stage raise a new case, a case inconsistent with the case of the deceased defendant as made in his written statement.
(iv) In the case of Lakshmi Narayan Khatri v. Gopal Lal Pathak and another (A I R 1943 Pat. 433) it was observed that since the widow had been impleaded in the appeal as the legal representative of her deceased husband as such she could raise only such objections as could have been taken by her husband himself. The learned Judge further observed that it would of curse be open to her to assert her rights, if any, by appropriate proceedings.
(v) Reference may also be made to the case of Lal Hussain v. Amir Muhammad Khan and another (P L D 1972 Lah. 256) wherein the learned Judge after repelling the argument advanced that in view of the provisions of Order XXII, Rule 4(2) C. P. C. the petitioner having been joined as a legal representative of the deceased defendant had a right file a fresh written statement, held :-
"In Order XXII, Rule 3, the deceased plaintiff's legal representatives are to be impleaded as a party and then it is provided that the Court shall proceed with the suit. Order XXII, rule 4 provides for the impleading of the legal representatives of a deceased defendant and sub-rule (1) of rule 4 says that the Court shall proceed with the suit, In sub-rule (2) however it is provided that any person made a party as a legal representative may make any defence appropriate to his character as legal representative of the deceased defendant. The argument of the learned counsel for the petitioner was that sub-rule (2) gives a right to the legal representatives to file a written statement even though the suit may have been defended by the deceased defendant although it may amount to re-opening of the whole casa. I think that such a construction of sub-rule (2) of rule 4 will create numerous complication and anomalies. Sub-rule (2) itself is not couched in such wide language. In my opinion, the comparative reading of the two rules 3 and 4 will show that the principal that the legal representatives of the deceased are bound by what the dece ased had done is not departed from nor is there any justification for holding that in case of death of the defendant, it is open to his legal rep resentatives to nullify all the proceedings already taken and to start the suit de novo from the stage of defence. Rule 3 of Order XXII which relates to the impleading of legal representatives of a deceased plaintiff' provides that once the legal representatives of the deceased plaintiff are made a party, the court shall proceed with the suit which means that it is to proceed from the ,stage at which the suit was at the time of death of the deceased plaintiff and whatever proceedings were taken by the deceased plaintiff would be deemed to be binding upon the legal represents ives. Sub-rule (1) of rule 4 also makes a similar provision that after legal representatives of a deceased defendant have been impleaded, the Court shall proceed with the suit. This provision is also susceptible of only one interpretation that the proceeding already taken will not be disturbed and suit will proceed only from the stage on which it was when the deceased defendant died. Similarity of language used in sub-rule (1) of rule 3 and sub-rule (I) of rule 4 excludes the possibility of these two rules being interpreted differently. Rule 3 becomes effective after the suit has already been instituted by filing a plaint and the plaint already been on record no further right of filing a pleading was necessary to be given to the legal representatives of the deceased plaintiff. In case of defendant, however, it is possible that the deceased defendant may not have filed a written statement in which case it would certainly be open to the legal representatives to file one. But there may be case, where some defence may not be open to the deceased defendant but it may be open to the legal representatives independently as an individual as distinguished from his capacity as legal representative. It is to meet such contingency that provision has been made in sub-rule (2) of rule 4 that any person made a party as legal representative may make any defence provided it is appro priate to his character as legal representative of the deceased defendant This provision is not to give a legal representative a right independent of the right of the deceased defendant or higher than that of the deceased defendant. On the other hand, it is a provision of limitation confining the legal representative to raise defence which could be raised by the deceased defendant. Sub-rule (2) does not authorise a legal representative to make any defence he likes, but only to make a defence appropriate to his character as legal representatives."
6. Finally it may be observed that even otherwise on the alleged admission of Muhammad Yasin, no decree can be passed as in the proceedings the respondent No. 2 Umrao Ali, the purchaser of the property who is a party to the proceedings has throughout denied the existence of any alleged agreement of sale between Abdul Ghani the respondent No. 1 (predecessor of Yasin) arid Sardar Aly, the applicant. The respondent No. 2 had expressly pleaded and which plea was accepted by the two Courts by giving concurrent findings of fact on appreciation of evidence, that no agreement to sell the property in suit was made by (late) Abdul Ghani and that the respondent No. 2 purchased the said property for value, bona fide and without notice of the alleged agreement of sale set up by the applicant. No attempt was made by the counsel for the applicant to show that the said findings given by the two Courts below were erroneous or suffered from any infirmity.
The so-called admission made by Muhammad Yasin is neicher binding upon the other legal representatives of late Abdul Ghani, nor the respon dent No. 2, the purchaser of the property, in the circumstances.
7. The upshot of the above discussion is that the application made under Order XII, rule 6, C. P. C. as well as the revision petition is dismissed as misconceived and without any merit. The applicant shall pay costs of these proceeding to the respondent No. 2.
The above are the reasons for the short order passed on 31-8-1986.
A. A. Petition dismissed.
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