PLJ 2008 SC 1007
[Appellate Jurisdiction]
Present: M. Javed Buttar & Ch. Ejaz Yousaf, JJ.
Mst. SHARIF BIBI & another--Appellants
versus
Syed MUHAMMAD NAWAZ SHAH & others--Respondents
C.A. Nos. 1744 & 1745 of 2005, decided on 15.7.2008.
(On appeal from the order dated 12.10.2004 in C.Rs No.
434-D & 435-D of 1996 passed by the Lahore High Court, Lahore).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Cross suits were
filed--Appointment of referee with consent of the parties--Power of
attorney--Determine the rights of the parties--Objection were raised and suits
were decided accordance with report of referee--Appeals were dismissed by
Courts below--Validity--Held: After recording the statements of counsel for
parties, trial Court appointed a referee and called upon to him to file a
report which was duly filed and the suits were decided in accordance with his
decision/report--Further held: Power of attorney executed by appellants in
favour of counsel does not contain any limitation on his authority and he had
full authority to give such statement--Parties were competent to agree to refer
the matter to a referee for decision of the suits and the Court was competent
to appoint agreed person as referee for decision of the suits and objection to
jurisdiction of trial Court in appointing a referee and referring the matter to
him for decision of the suits has no legal basis--Appeals were dismissed. [P. 1010] A & B
PLJ 2000 SC 513 & 2003 SCMR 1911, rel.
Mr. Amin-ud-Din Khan, ASC for Appellants.
Mr. Gul Zarin Kiyani, ASC and Mr. M.S. Khattak, AOR for
Respondents.
Date of hearing: 15.7.2008.
Judgment
M. Javed Buttar, J.--These appeals, by leave, are
directed against judgment dated 12.10.2004, passed by a learned Judge in
Chambers of the Lahore High Court, whereby Civil Revisions No. 434-D &
435-D of 1996, instituted by the appellants, were dismissed.
2. The relevant
facts are that on 12.6.1985 Respondents No. 1 to 6 instituted a suit against
the appellants and Respondent No. 7 and also against one Muhammad Akbar Shah.
The suit land involved in both the suits is common and was admittedly owned by
Mst. Bakhu daughter of Haider Nawaz Shah who died issueless on 29.7.1984.
Muhammad Akbar Shah was the real brother of Mst. Bakhu. According to the
respondents Mst. Bakhu had gifted away the suit land to them and executed a
document on 3.4.1984. All the requirements of the gift were fulfilled and the
gift stood completed. It was alleged that the present appellants had fabricated
a will stated to be executed by Mst. Bakhu on 12.12.1980 whereas no such Will
had been made or executed by the deceased lady. Accordingly a declaration was
sought that they were owners of the suit land. The appellants contested the
suit, denied the gift and supported the Will in their favour.
3. The appellants
also instituted a cross suit against Akbar Shah, the Respondent No. 7, and the
remaining respondents seeking declaration of ownership on the basis of the said
Will dated 12.12.1980. The suit was conceded by Akbar Shah. The written statement
was not filed by Respondents No. 1 to 6 and the case was being adjourned.
4. On 19.2.1992,
respondents suit was dismissed for non-prosecution as their learned counsel
stated that he had no instructions, while in the suit filed by the appellants,
the said learned counsel also reported no instructions, therefore, respondents
were proceeded against ex-parte and the appellants' suit was decreed exparte.
5. On 22.6.1993
and 7.6.1993 applications were filed by the respondents in both the suits for
restoration and for setting-aside the exparte decree. During the pendency of
these applications, on 27.3.1994, learned counsel for the parties, Muhammad
Nawaz Shah and Anees-ul-Husnain Shah respondents as also Syed Tanseer Abbas,
Appellant No. 2, made a statement that let Kh. Suleman Taunsvi, be appointed as
a referee to determine the rights of the parties in the suit property and in
accordance with the decision of the said referee, the applications as well as
the suits be decided and that the parties shall accept the decision without any
objection. The Court, therefore, appointed Kh. Suleman Taunsvi as a referee.
The parties were directed to appeal before him on 31.3.1994 and the referee was
directed to file his report by 12.4.1994. The referee sent his report on
3.4.1994 in a sealed envelope. It was opened in Court on 12.4.1994. Meanwhile
both the appellants had filed separate applications raising certain objections
including an assertion in one of the applications that one of the appellants
had cancelled the appointment of the referee. It was also objected by Mst.
Sharif Bibi that her counsel had no authority to agree to the reference to the
referee. The learned trial Court vide judgment and decree dated 28.5.1994
rejected the said applications and decided the suits in accordance with the
report of the referee who had held that the land be distributed amongst the
respondents in accordance with the gift deed dated 3.8.1984. The first appeals
filed by the appellants were dismissed by Additional Sessions Judge, Taunsa
Sharif, vide his judgment and decrees dated 5.3.1996. As mentioned above, the
revision petitions instituted by the appellants were dismissed by a learned
Judge in Chambers of the Lahore High Court, on 10.12.2004.
6. We have heard
learned counsel for the parties at length and perused the record with their
able assistance.
7. It has been
argued by learned counsel for the appellants that the learned counsel appearing
for the appellants was not authorised to agree to refer the matter to a
referee; that the trial Court had no jurisdiction to refer the subject-matter
of the suits to a referee because at that time no suits were pending and only
an application for setting-aside the exparte decree and for setting-aside order
of dismissal for non-prosecution of the respondents' suits, were pending.
Similar arguments were raised before the learned Judge in Chambers of the
Lahore High Court at the time of decision of the civil revisions instituted by
the appellants and identical arguments were raised at the time when the leave
granting order was passed.
The contentions have been opposed and it has been
submitted that parties were duly represented by their learned counsel at the
time when the parties agreed through their learned counsel to refer "the
entire matter to a referee for decision and therefore, the appellants are bound by the decision of the
referee and the Courts below correctly decided the suits in accordance with the
decision of the referee. Learned Senior ASC for the respondents has also placed
reliance upon (i) Muhammad Khan v. Nazir Ahmed (2003 SCMR 1911), (ii) Nazir
Ahmad and another v. Muhammad Din and another (PLJ 2000 SC 513), (iii) Mst.
Lalan v. Noor Muhammad and others (1994 SCMR 1771) and (iv) S.E. Makudam
Mahommad v. T.V. Mahommad Sheikh Abdul Kadir and another (AIR 1936 Madras 856).
8. We have given
our anxious consideration to the entire facts and circumstances of the case and
to the arguments addressed before us by the learned counsel for the parties.
9. In our view the
learned trial Court proceeded with the matter and decided the suits in
accordance with law. All the parties through their counsel had stated before it
that they would like the matter to be decided by the above referee in
accordance with his statement or report and that they will not object to the
said decision. After recording the statements of the learned counsel for the
parties, learned trial Court appointed the said person as a referee and called
upon him to file a report which was duly filed and the suits were decided in
accordance with his decision/report. The objections in regard to his
appointment and in regard to the jurisdiction of the Court, which have
throughout been raised by the appellants, do not have any force. They have been
correctly and lawfully met by the Courts below especially learned Judge in
Chambers of the High Court in the impugned judgment. Learned counsel for the
appellants agreed to refer the matter to a referee for the decision of the
suits in accordance with his decision/report. Power of attorney executed by the
appellants in favour of the counsel does not contain any such
limitation/restriction on his authority and he had full authority to give such
a statement. Similarly when the matter was pending before the Civil Court of
competent jurisdiction, the parties were competent to agree to refer the matter
to a referee for the decision of the suits and the Court was competent to
appoint agreed person as referee for decision of the suits and therefore
objection to the jurisdiction of the trial Court in appointing a referee and
referring the matter to him for decision of the suits, has no legal basis. The
Court was competent to do so although only the applications were pending. In S.
E. Makudam Mahommad vs. T.V. Mahommad Sheik Abdul Kadir and another (Supra) it
was observed as under :--
"When a party invites the Court to adopt a procedure
which is not contemplated by the Civil P.C., and is in fact a procedure extra
cursum curiae, he cannot turn round and say that the Court is to blame for
adopting the very procedure which he invited the Court to follow. There is such
a thing as estoppel apart from the
question of adjustment
and the doctrine
of estoppel would apply to a party who attempts to blow hot and cold in
this fashion. As was held in (1896) AC 136 (1), where with the acquiescence of
the parties the Judge departed from the ordinary course of procedure and
decided upon a question of fact, it was incompetent for the parties afterwards
to contend that they have an alternative mode of proceeding with the trial as
if it had been heard in due course. Lord Watson observed in that case that
there were several decisions of the House of Lords which affirmed that the
judgment of the Court below pronounced extra cursum curiae, is in the nature of
an arbiter's award and that as a general rule at least no appeal from it will
lie."
10. We are further
of the view that the appellants are estopped to assail the appointment of
referee and reference of the matter to the referee by the trial Court because said
steps were taken by the trial Court on the asking of the appellants themselves
as well as the respondents.
11. In view of
above mentioned, we find no merit in these appeals, which are dismissed,
however there is no order as to costs.
(R.A.) Appeals
dismissed.
