CITATION: 2017 S C M R 385

APPELLANT: KARIM NAWAZ

Versus

RESPONDENTS: ADDITIONAL DISTRICT JUDGE, KHUSHAB & 4 OTHERS

APPEAL FROM ORDER DATED 25.5.2004

FACTS

This Civil Appeal by leave of the Court is directed against the Order dated 25.05.2004, whereby
Constitutional Petition, filed by the present Appellant, was dismissed.

1. The Appellant filed an application under section 12(2), C.P.C., to call into question the
judgment and decree dated 09.01.1979 making an Award, the Rule of the Court.
2. The proceedings, in this behalf, for making an Award, the Rule of the Court, were
initiated by Respondent No.3 against Muhammad Nawaz, the father of the Appellant and
Respondent No.3.
3. By way of the said Award, Respondent No.3 was held to be the owner of the property in
dispute on the basis of a gift in his favour by his father (Muhammad Nawaz).
4. When the application under section 12(2), C.P.C. was filed (amended application filed on
20.12.1994) by the Appellant, the father Muhammad Nawaz had already died on
11.10.1990.
5. The said application under section 12(2), C.P.C. was contested by Respondent No.3.
6. The divergent pleadings of the parties, issues were framed and evidence was recorded.
7. The learned Trial Court dismissed the said application vide judgment dated 02.08.2002.
Aggrieved, the Appellant filed a Civil Revision bearing No.49 of 2003, which was
dismissed by the learned Additional District Judge, Khushab, vide judgment dated
06.01.2004.
8. Where after, the Appellant invoked the Constitutional jurisdiction of the learned Lahore
High Court, which has been dismissed vide impugned Order dated 25.05.2004.
9. The Appellant filed Civil Petition for Leave to Appeal No.2841-L of 2004, wherein Leave
to Appeal was granted by this Court vide Order dated 13.05.2009. Hence, this Civil
Appeal.

ARGUMENTS

Appellant

 In the instant case the Arbitration Agreement and the Award are of the same date. The
Arbitrator was the clerk of the counsel. It is added that the Award was made Rule of the
Court on the basis of the alleged conceding statement of Muhammad Nawaz (father) who
in fact never appeared in the Court.
 It was never proved in evidence that Muhammad Nawaz (father) signed the Arbitration

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 Agreement or appointed an Arbitrator.
 The ingredients of the gift were also not independently proved in evidence. It is added
that by way of the alleged gift a legal heir has been discriminated without any acceptable
reason.
 The judgment and decree making the Award, the Rule of the Court, has been obtained
fraudulently and through misrepresentation, which was liable to be set aside.

Respondent

 Respondent No.3 controverted the contentions raised on behalf of the Appellant by

contending that the Appellant had failed to prove that the judgment and decree had been
obtained by fraud or misrepresentation. No cogent evidence, in this behalf, was brought
on the record and there are concurrent findings of fact to the contrary, which are not
liable to be disturbed by this Court in its instant jurisdiction.
 The Appellant had been involved in a murder case and the father (Muhammad Nawaz)
and the son (Appellant) were estranged, hence, the property was gifted to Respondent
No.3.
 In the instant case, an Award was filed by Respondent No.3 for making it the Rule of the
Court and passing of a decree on the basis thereof. Such Award was made the Rule of the
Court and the judgment and decree was passed on the basis of a conceding statement by
the opposite side i.e. Muhammad Nawaz (father).

ISSUE

 Whether such judgment and decree was obtained fraudulently would depend primarily
upon the fact whether the said Muhammad Nawaz actually appeared in Court and
conceded the case of Respondent No.3 of making the Award, the Rule of the Court?
 Whether the application under section 12(2) of CPC, 1908 is maintainable?

RULING

 The judgment and decree sought to be set aside through the application under section
12(2), C.P.C. was passed on 09.01.1979 against Muhammad Nawaz (father) who died on
11.10.1990.
 On the basis of the said judgment and decree, a mutation had also been effected. During
his lifetime, Muhammad Nawaz (father) never challenged the said judgment and decree.
As per the record, the Award was filed in Court where Muhammad Nawaz (father)
entered appearance and stated that he had no objection if the Award was made, the Rule
of the Court. His statement was recorded and thumb impression was obtained.
 The record of the proceedings has been produced in evidence. The Appellant was unable
to bring any evidence on record to disprove the thumb impression of Muhammad Nawaz
(father). There is no evidence on record to suggest that Muhammad Nawaz (father) did
not appear and concede the case of Respondent No.3.
 The Appellant in his own statement did not specifically spell out that fraud had been

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 allegedly committed or that Muhammad Nawaz (father) did not appear in Court. His
entire evidence was based on hearsay.
 The Stamp Vendor from whom the Stamp Paper for the Arbitration Agreement was
purchased, also entered the witness box along with his Register. The counsel who
represented Muhammad Nawaz (father) also appeared as a witness and supported the
case of Respondent No.3. It was also conceded by the Appellant in his cross-examination
that Respondent No.3 was in possession and cultivated the part of the land in dispute.
 It was also in evidence that the Appellant had been involved in a murder case. On the
basis of the aforesaid evidence, the learned Trial Court seized of the matter, concluded
that the Appellant had been unable to prove that the judgment and decree dated
09.01.1979 had been obtained by fraud and misrepresentation nor had the Appellant
succeeded in discharging the onus placed on him, in this behalf, especially when there is
a presumption in favour of regularity of judicial proceedings. Such finding of fact has
been upheld by the Revisional Court through a detailed judgment.
 The learned High Court in its Constitutional jurisdiction also declined to interfere with
the findings of the two Courts below. Upon hearing the learned counsel for the Appellant,
we are also unable to persuade ourselves to interfere with the concurrent and consistent
findings of fact especially as no misreading or non-reading of evidence has been pointed
out at the bar.
 The learned counsel for the Appellant has been unable to establish that Muhammad
Nawaz (father) did not appear in Court and expressed his consent to making the Award,
the Rule of the Court. The judgments cited by the learned counsel are not applicable to
the facts of the instant case.

APPLICATION

Section 17 of Arbitration Act 1940

Judgment in terms of award. Where the Court sees no cause to remit the award or any of the
matters referred to arbitration for reconsideration or to set aside the award, the Court shall,
after the time for making an application to set aside the award has expired, or such application
having been made, after refusing it, proceed to pronounce judgment according to the award, and
upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such
decree except on the ground that it is in excess of, or not otherwise in accordance with, the
award.

Section 12 (2) code of civil procedure, 1908

Bar to further suit. Where a plaintiff is precluded by rules from instituting a further suit in
respect of any particular cause of action, he shall not be entitled to institute a suit in respect of
such cause of action in any Court to which this Code applies.

CONCLUSION

There is no justification for interfering with the impugned Order of the learned Lahore High

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Court dated 25.05.2004, which is in accordance with the law and does not suffer from any
illegality.

Consequently, this Civil Appeal being without merit is dismissed with no order as to costs.

Appeal dismissed.

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