Wednesday, 30 May 2012

Can trial court recall its own order

PLJ 2012 Lahore 89
[Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Tariq, J.

Malik MUHAMMAD NIAZ--Petitioner

versus

MUHAMMAD AYUB etc.--Respondents

C.R. No. 376 of 2008 and F.A.O. No. 40 of 2010, heard on 15.3.2011.

Civil Procedure Code, 1908 (V of 1908)--

----O. XII, R. 6--Scope of--Categorical statement--Court was oblized to pass final judgment--Unconditional conceding statement--Contention of--Trial Court had no jurisdiction to recall his earlier order--Validity--If any party made an unconditional conceding statement after being satisfied with situation or terms and conditions of a compromise, Court was bound to pass a decree but in the instant case, facts were otherwise--Respondent showed his lack of confidence in attorney and at same time he filed an application u/Order 1, Rule 10, CPC for impleading him as party--Provisions of Order XII, Rule 6, CPC were not strictly attracted in matter in hand.   [Pp. 91 & 92] A

Civil Procedure Code, 1908 (V of 1908)--

----S. 30, O. XLIII, R. 1 & Order XLVII, XX, R. 5 & O. XLI, R. 30--Application for review--Drawing a judgment--Alteration and amendment in judgment--No authority to recall order on verbal request--Suit for specific performance--Compromise deed was produced--Case was adjourned--Respondent resiled from his previous stance and filed an application under O. I, R. 10, CPC--Applications were accepted--Challenge to--Suit was decreed by trial Court--Order was recalled--Validity--Trial Court has traveled beyond his jurisdiction because once Court Judge signs and pronounces judgment in open Court, thereafter he ceases to exercise jurisdiction in matter as he becomes functus officio, and unequivocal insistence of law particularly Order XX, R. 5 and Order 41, R. 30 r/W. S. 30, CPC is with object that while drawing a judgment, judge must apply his judicial mind with reasonable depth, so that points in controversy were fairly determined with reasons--Any alteration and amendment thereafter in the judgment is not permissible because such practice, if allowed, would bring system of justice into disarray--Valuable rights of the parties were involved, which could only be determined after framing of formal issues and recording of evidence of the parties--FAO was allowed--Case was remanded.    [P. 92] B

Mr. Muhammad Ilyas Sheikh, Advocate for Petitioner.

Malik Shabbir Akhtar Awan, Advocate for Respondent No. 1.

Date of hearing: 15.3.2011.

Judgment

This judgment shall simultaneously dispose of Civil Revision No. 376/2008 and FAO No. 40/2010 as common questions of law and facts are involved therein.

2.  Precisely stated the facts giving rise to the filing of these petitions are that the petitioner/appellant filed a suit for specific performance and permanent injunction against Respondent No. 1 alleging therein that on 13.1.2007, Respondent No. 1 entered into an agreement with the petitioner/appellant to sell his property, fully described in both the petitions, against a sale consideration price of Rs. 78,00,000/- (Rupees Seventy Eight Lacs), an earnest money of Rs. 10,00,000/- was paid by the petitioner/appellant and it was agreed between the parties that Respondent No. 1 will present the sale-deed for registration before the concerned authorities until 3.2.2007 and remaining consideration price will be paid at the time of registration before the Sub-Registrar concerned but Respondent No. 1 was avoiding the performance of sale agreement.

3.  After service of notice, Respondent No. 1 alongwith his learned counsel appeared before the trial Court on 8.06.2007 and made a statement that he has compromised with the plaintiff and according to compromise, Defendant/Respondent No. 1 has received Rs. 10,00,000/- (Rupees ten lacs) and residual amount of 75,00,000/ (Rupees seventy-five lacs) will be paid by the plaintiff within 20 days, therefore, in the light of the statement of Respondent No. 1, the case of plaintiff be decreed. The Defendant/Respondent No. 1 also produced the original sale-deed in his name which was exhibited as Exh. D1. However, without decreeing the suit of the plaintiff, the case was adjourned to 15.6.2007. On the said date, Respondent No. 1 resiled from his previous stance and filed an application under Order I, Rule 10, C.P.C. in order to implead him as a party in the suit and also filed another application with the prayer that his earlier statement dated 8.6.2007 be declared ineffective and he be allowed to withdraw his admission and suit be decided on merit. Both the applications were resisted by the petitioner-appellant, however, vide order dated 10.07.2008, learned trial Court accepted both the applications. Hence the civil revision in hand was filed.

4.  On 14.12.2009, Respondent No. 1 moved a petition under Order XXIII, Rule 3 read with Section 151 C.P.C. wherein a statement by special attorney of Respondent No. 1 in favour of the petitioner-appellant was recorded and the learned trial Court decreed the suit of the petitioner/appellant vide judgment and decree dated 21.12.2009 which was duly announced and signed. However, the same order was recalled by the learned trial Court vide subsequent order of even date. Hence the present FAO.

5.  Learned counsel for the petitioner/appellant inter alia contends that the impugned orders are against law and facts. The learned trial Court acted with material irregularity while passing the impugned orders. Respondent No. 1 made a categorical statement before the learned trial Court and thereafter, the learned trial Court was obliged to pass a final decree under Order XII, Rule 6, C.P.C. He further contends that the learned trial Court had no jurisdiction to recall his earlier order i.e. judgment and decree after announcing and signing it. In support of his contentions, learned counsel has relied on 1990 CLC 1609, 2003 SCMR 1261, 2004 YLR 1775 and PLD 1983 Karachi 393. Learned counsel argues that after signing of judgment and decree, only appeal could have been preferred, and the learned trial Court had no jurisdiction to set aside its own judgment and decree merely on the basis of two miscellaneous applications, therefore, impugned order dated 10.07.2008 and also subsequent order dated 21.12.2009, whereby earlier judgment and decree of even date was recalled, be set aside and earlier judgment and decree dated 21.12.2009 be restored.

6.  Conversely, learned counsel for Respondent No. 1 has vehemently opposed the Civil Revision as well as the FAO on the grounds that the general attorney appointed on behalf of Respondent No. 1 had joined hands with the petitioner/appellant who made a statement in his favour without obtaining permission from Respondent No. 1. Further contends that the petitioner/appellant has also not complied with the terms and conditions set forth between the parties for transfer of the suit property. The impugned orders passed by learned trial Court are just and fair. Learned counsel for Respondent No. 1 prays that the Civil Revision as well as FAO be dismissed and the impugned orders be maintained.

7.  Arguments advanced by learned counsel for the parties have been heard and the record has also been perused.

8.  So far as the contention of learned counsel for the petitioner/appellant that after categorical statement of Respondent No. 1, the learned trial Court was obliged to pass final judgment and decree under Order XII, Rule 6, C.P.C. is concerned, it does not persuade this Court because  spirit  of  Order  XII,  Rule  6,  C.P.C.  is  that if any party makes an unconditional conceding statement after being satisfied with the situation or terms and conditions of a compromise, the Court is bound to pass a decree but in the instant case, the facts were otherwise. Respondent No. 1 showed his lack of confidence in the attorney and at the same time, he filed an application under Order I, Rule 10, C.P.C. for impleading him as a party. He also raised a number of objections in this behalf. So, the provisions of Order XII, Rule 6, C.P.C. are not strictly attracted in the matter in hand. However, perusal of record highlights that vide judgment and decree dated 21.12.2009, learned trial Court decree the suit of the petitioner/plaintiff. The judgment was announced in open Court which was duly signed by the learned trial Court. The argument of learned counsel for the petitioner-appellant is correct to his extent that after signing of judgment and announcement of order, learned trial Court had left with no authority to recall the said order on the verbal request of other party. In this situation, Respondent No. 1 should have filed either an appeal under Order XLIII, Rule 1, C.P.C. or at least an application for review under Order XLVII, C.P.C. The learned trial Court has traveled beyond his jurisdiction because once Court/Judge signs and pronounces judgment in open Court, thereafter he ceases to exercise jurisdiction in the matter as he becomes functus officio, firm and unequivocal insistence of law particularly Order XX, Rule 5 and Order XLI, Rule 30 read with Section 30 CPC is with the object that while drawing a judgment, the Judge must apply his judicial mind with a reasonable depth so that points in controversy are fairly determined with reasons. Any alteration and amendment thereafter in the judgment is not permissible because such practice, if allowed, would bring the system of justice into disarray. Exceptions, however, is allowed by the law itself under the provisions of Sections 114, 12 & Order XLVII CPC.

9.  The valuable rights of the parties are involved, which could only be determined after framing of formal issues and recording of evidence of the parties. Therefore, in the peculiar circumstances of this case, the civil revision in hand is dismissed while the FAO is accepted, the impugned judgment and decree dated 21.12.2009 and subsequent order dated 21.12.2009 are set aside and the case is remanded to the learned trial Court with the direction to decide the matter afresh after framing of issues and recording of evidence of the parties expeditiously. Parties are directed to appear before the learned trial Court on 4.4.2011.

(R.A.)  Case remanded.


1 comment:

  1. Speedy Justice

    After lower courts were instructed by the Honorable Chief Justice to dispose of long pending cases it was heartening to note that old cases were transferred to another court of the same level for a speedy disposal of the same. However, It was shocking to note, at least in one civil case, that a learned Judge of the lower court and possessing the same jurisdictional powers of that judicial forum passed an order stating that the 'order passed earlier was null and void in the eyes of law'' (not exact words but a gist of it). The horrifying question is: Whether a transfer of a case or a judge in the same jurisdictional forum empowers the new judge or court
    to override and nullify the orders passed by the preceding judge in the same forum and in the same matter ? It does not appeal to the commonsense that the step of negation of precedent judge's orders is lawful or in the interest of justice, the matter clearly falling in the jurisdictional ambit of the higher court. Such incidences if let to occur will only open the door for more delay and circuitous litigation because the affected litigant will definitely opt for Revision with the District Judge and there are apparent chances that the unlawful order will be reversed or stuck down. It would not be out of place to state that such arbitrary and careless use of speed in deciding judicial matters will only deny justice to litigants and will give result to 'haste makes waste'. It may be desired of the Honorable Supreme court to see that the adjudicating courts do not use the powers or jurisdiction of the Appellate courts or tend to act as summary courts while speedily deciding matters which, as a rule, ought to be decided on merit only.

    Mazhar Butt

    ReplyDelete

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