Alligations of fake written statement and power of attorney.

Alligations of fake written statement and power of attorney

جواب دعوی اور وکیل کا پاور آف اٹارنی جعلی ہیں۔ اس نے دعویٰ کیا کہ اس کی انگوٹھے کے نشان جعلسازی سے لگائے گئے ہیں اور اس کے نام پر جعلی دستاویزات تیار کی گئی ہیں۔

درج ذیل میں کیس کی تفصیلات اردو میں بیان کی گئی ہیں:

دعویٰ کیا تھا:

مدعی (پٹیشنر) نے عدالت میں درخواست دی تھی کہ اس کی طرف سے فائل کردہ تحریری جواب اور وکیل کا پاور آف اٹارنی جعلی ہیں۔ اس نے دعویٰ کیا کہ اس کی انگوٹھے کے نشان جعلسازی سے لگائے گئے ہیں اور اس کے نام پر جعلی دستاویزات تیار کی گئی ہیں۔ اس نے یہ بھی کہا کہ اسے صحیح طریقے سے نوٹس نہیں دیا گیا اور اس کے دستخط بھی جعلی ہیں۔

جواب کیا تھا:

جواب میں مدعا علیہان (جواب دہندگان) نے یہ موقف اختیار کیا کہ عدالت کے ذریعہ دائر کردہ تحریری جواب اور پاور آف اٹارنی درست اور قانونی ہیں۔ انہوں نے کہا کہ ان دستاویزات کے خلاف درخواست ناقابلِ قبول ہے اور کوئی جعلی دستاویزات کا معاملہ نہیں ہے۔

عدالتی حکم:**

لاہور ہائی کورٹ نے اس کیس میں فیصلہ دیتے ہوئے کہا کہ lower courts (عدالتِ پہلی اور عدالتِ اپیل) نے جعلی دستاویزات کی جانچ پڑتال مناسب طریقے سے نہیں کی۔ عدالت نے اس بات کو تسلیم کیا کہ اس وقت تک کوئی ماہر یا خود عدالت نے دستخطوں کا موازنہ نہیں کیا تھا۔ اس کے نتیجے میں، ہائی کورٹ نے پچھلے احکام کو کالعدم قرار دیتے ہوئے کیس کو دوبارہ trial court (پہلی عدالت) میں واپس بھیج دیا تاکہ دستاویزات کی اصلیت کا جائزہ ماہر کے ذریعہ یا عدالت کے ذریعہ خود کیا جائے۔

مجموعی طور پر، ہائی کورٹ نے اس بات کو یقینی بنانے کے لئے کہ انصاف ہو، پچھلے فیصلے کو کالعدم قرار دے دیا اور دوبارہ سماعت کا حکم دیا۔

Must read judgement

Form No: HCJD/C-21

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN.

JUDICIAL DEPARTMENT

W.P.No.9930/2011.

Wahid Bakhsh

Vs.

Addl. District Judge etc.

S.No. of

order/

proceeding

Date of

order/

proceeding

Order with signature of Judge, and that of

parties or counsel, where necessary.

24.06.2013. Malik Ahmad Shehzad, Advocate, for petitioner.

Syed Niaz Rasul Shah Bukhari, Advocate for

respondents No.3 and 4.

Rana Muhammad Hussain, AAG.

This writ petition has been filed against the impugned order

dated 24th of May 2011 passed by trial court whereby the

application of the petitioner for cancellation of written statement

dated 13th of October 2010 alongwith power of attorney on behalf

of petitioner/ defendant in favour of Malik Farooq Akhtar Angra

Advocate, has been dismissed and the revision petition of the

petitioner before the learned Additional District Judge,

Muzaffargarh was also dismissed vide impugned order dated 06th

of June 2011.

Briefly the facts in this case are that the respondents No.3

and 4 filed a suit for specific performance of a contract pertaining

to the land mentioned in head note of the plaint on the basis of

agreement allegedly executed on 18th of January 2010. During the

pendency of the suit, the petitioner/ defendant moved an

application dated 11.12.2010 for cancellation of written statement

filed in the suit as well as the power of attorney executed in favour

of Malik Farooq Akhtar Angra Advocate on the ground that both

the documents are forged and fabricated. After hearing the parties,

the aforesaid application was dismissed by the trial court on 24th

of May 2011 which order was upheld by the Additional District

W.P. No.9930/2011.

Judge by dismissing the revision of the petitioner on 06th of June,

2011.

Learned counsel for the petitioner argued that the impugned

orders are illegal as the respondents No.3 and 4 / plaintiffs

managed to prepare a consenting written statement and fake and

fabricated power of attorney on behalf of petitioner through Malik

Farooq Akhtar Agra Advocate and the thumb impressions of the

petitioner on both these documents were absolutely forged.

Further submit that mere comparison of these thumb impressions

with admitted thumb impression shows that documents are not

genuine and therefore, fraud has been perpetrated on the Court.

The learned counsel further submits that the petitioner was never

served with any notice nor he appeared on 27th of September,

2010 and that the thumb impressions of the petitioner on the court

file is also result of impersonation. Submit that this aspect of the

matter has not even considered by both the Courts below and

without recording evidence or even comparing the documents

through expert or itself by learned Court, the application of the

petitioner was dismissed. Reliance is placed on case titled Ghulam

Nabi and others Vs. Ashraf Ali (1994 SCMR 1709) and

Muhammad Riaz Khan Vs. Sardar Rahim Dad and 12 others

(PLD 1990 SC (AJ & K) 13).

Conversely the learned counsel for the respondents argued

that the order passed by trial court is in accordance with law

which was upheld by the revisional court and the constitutional

petition is not maintainable against the interim order passed by the

trial court and upheld by the revisional court. Reliance is placed

on case titled Muhammad Khan and 6 others Vs. Mst. Ghulam

Fatima and 12 others (1991 SCMR 970), Noor Muhammad Vs.

Sarwar Khan and 2 others (PLD 1985 SC 131) and Muhammad

Samiullah Khan Versus Additional District Judge, Sargodha

(PLD 2002 Lahore 56).

W.P. No.9930/2011.

Arguments heard. Record perused.

The perusal of impugned orders shows that the application

of the petitioner for cancellation of written statement and the

power of attorney was dismissed primarily on the ground that

these documents are part of judicial proceedings and therefore,

presumption of truth is attached to them. Admittedly, neither any

issue has been framed nor any evidence has been recorded to

determine whether the written statement and power of attorney

which was challenged being forged and fabricated document was

a genuine document. The dispute regarding the genuineness of

these documents could also be resolved by referring the matter to

expert or the Courts below themselves under Article 84 of Qanune-Shahadat Order 1984 could compare the admitted thumb

impressions of the petitioner with the alleged forged thumb

impressions on these documents to come to a fair conclusion

regarding the genuineness or otherwise of these documents. No

such exercise was done by the trial Court as well as the revisional

Court. Mere mentioning of CNIC number of the petitioner on the

Court file without his proper identification in court is not

sufficient to discard the contention of the petitioner that he did not

appear before the court on 27th of September, 2010 and his thumb

impressions were not genuine and was the result of fraud and

impersonation. The Courts below were required to at least

compare the admitted thumb impression of the petitioner with the

alleged disputed thumb impression itself or through expert.

In such circumstances, this Court in constitutional

jurisdiction can interfere and set aside the impugned orders. In this

regard, reference is made to law laid down by August Supreme

Court in case titled Sh. Muhammad Sadiq Vs. Elahi Bakhsh and 2

others (2006 SCMR 12). In the aforesaid case, suit for specific

performance was decreed on the basis of consenting written

statement which was assailed on ground of fraud and

misrepresentation. In the said case, the petitioner denied the

written statement on the ground that the signatures were taken by

W.P. No.9930/2011.

his counsel on a blank paper fraudulently. His application under

Section 12(2) CPC was dismissed by the trial court as well as by

the appellate court, however, the High Court in constitutional

jurisdiction, set aside the decree and August Supreme Court

declined to interfere and following observation was made:-

“We having gone through the record, find that a

gross error of misreading of evidence was committed

by the Court of first instance as well as the revisional

Court and this is settled proposition of law that a

jurisdictional error committed in the judicial or

quasi-judicial proceedings by a Court or Tribunal, as

the case may be, can be corrected by the High Court

in its constitutional jurisdiction. The strict

application of the general rule in the present case

that concurrent finding of fact even if erroneous,

cannot be interfered in the constitutional jurisdiction,

would amount to protect the fraud and deprive the

respondent from his valuable property by defeating

the cause of justice.”

It is also the duty of the Court that real defence from the

side of the defendant be reflected in the proceedings. In this

contest, reference is made to case titled Dara and 4 others Vs.

Khurshid Ali and 4 others (2001 SCMR 761 (SC), where earlier

written statement filed by the attorney of the defendant was

disowned by the defendant and the trial court ordered for the

return of the same, however, subsequently written statement

submitted by the defendants was retained by the trial court on the

file of the case which order was upheld by the High Court and

August Supreme Court refused to grant leave and made the

following observation:-

“The High Court, per order dated 22.01.1999, has

upheld in revision an order dated 10.09.1995, passed

by the learned Civil Judge, Bhakkar, in suit No.195

W.P. No.9930/2011.

of 1990, whereby a written statement filed on behalf

of the respondents, purportedly through the

respondents’ attorney, was ordered to be returned

and another written statement submitted on

13.02.1991 by the respondent No.1 himself was

retained on the file. It has been noted in the relevant

orders that the purported attorney did not even

submit his power of attorney alongwith the written

statement presented on 09.02.1991 and that such

written statement having been disowned by the

respondents-defendants could not, in the

circumstances, be given any credence. Besides, real

defence from the side of the defendants was required

to be reflected in the proceedings. We find no merit in

this petition directed against revisional order of the

High Court and dismiss it”.

Where it is alleged that fraud has been committed and

consenting written statement has been filed due to collusion and

impersonation, the Court itself can look into the allegation and if

need, be decide the matter by framing issues. In this context,

reference is made to case titled Shah Nawaz Vs. Civil Judge,

Rahim Yar Khan and 03 others (1992 CLC 1 (Lahore). In this

case, the suit for specific performance was filed and in the written

statement, the defendant admitted the suit/ claim of the plaintiff,

however, subsequently, an application u/s 151 Code of Civil

Procedure was filed by the defendant in which she disowned the

written statement and stated that fraud and misrepresentation has

been committed by the plaintiff and therefore, the proceedings

with regard to filing of earlier written statement be set aside and

she be allowed to contest the suit. The learned trial Court after

framing of issues and recording the evidence of the parties,

accepted the application and allowed the defendant to file written

statement. Against the said order, the revision petition was

W.P. No.9930/2011.

dismissed. In a constitutional jurisdiction, both these orders were

upheld by this Court and it was observed as under :-

“Since both the Courts have come to the conclusion

that the earlier written statement dated 29.04.1989

was not filed by Mst. Sat Bhari, therefore, the order

allowing her to file fresh written statement would not

mean that she has been allowed to file additional /

second written statement. So, written statement which

will be filed by her under the impugned order will be

the first written statement. This being the position,

the question of changing the averments in second

written statement does not arise. The learned Courts

below have not flouted the provision of relevant law.

They have also not violated any case law laid down

by the Superior Courts on this point. I do not see any

misreading/ non-reading of evidence on the part of

the Courts blow. The judgments of the Courts below

do not suffer from legal infirmities.”

The aforesaid principle of law was also followed by this Court in

case titled Ilahi Bakhsh Vs. Ilahi Bakhsh (2005 CLC 1704

(Lahore).

10. The case law cited by the learned counsel for the respondent

has no help to his case as it proceeds on a different set of facts and

circumstances.

11. In view of above law laid down by the August Supreme

Court and this court, the impugned orders are the result of patent

illegality and jurisdictional error and non-interference by this

Court in constitutional jurisdiction would amount to protect fraud

and depriving the petitioner from his valuable rights by defeating

the cause of justice. In the circumstances, the impugned orders are

set aside and the case is remanded to the trial court to decide the

matter afresh after comparing the alleged forged documents with

W.P. No.9930/2011.

the admitted documents by itself or through expert and if so

required also frame issue and record evidence to determine the

genuineness of documents.

12. With the aforesaid observations, this writ petition is

allowed.

(Abid Aziz Sheikh)

Judge

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