Abdul Majeed etc. vs Muhammad Younas Amin etc.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

WP No. 23350 of 2014

Abdul Majeed (deceased) through his legal heirs etc vs Muhammad Younas etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 21.03.2019 Mr. Ghulam Hussain Awan, Advocate for petitioners. Mr. Muhammad Mehmood Chaudhry, Advocate for respondents.

Through this constitutional petition, the petitioner has called in question the order dated 06.08.2014 passed by Addl: District Judge, Sheikhupura, whereby the revision petition filed by the respondents was allowed by setting-aside the order dated 19.07.2008 passed by the trial court, whereby application under Section 12(2) and under Order IX Rule 13 CPC filed by the petitioners was accepted.

2.Learned counsel for the petitioners has argued that the learned revisional court has misinterpreted the order dated 13.05.2014 passed by this Court, whereby in earlier round of litigation, WP No.8110 of 2009, filed by the petitioners, was allowed and the matter was remanded for decision afresh and has wrongly concluded that

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provisions of Section 12(2) CPC could not be invoked, therefore, the said order suffers from erroneous exercise of jurisdiction and is liable to be set-aside.

3.On the other hand, learned counsel for the respondents has defended the impugned order by stating that the matter had been remanded only to the extent of decision of application under Section 5 of the Limitation Act, 1908 (“Act”) for condonation of delay in filing application for setting-aside the ex-parte judgment and decree and consequently, the said order is in accordance with law.

4.Heard. Record perused.

5.From perusal of record it is observed that learned revisional court in para 7 of the impugned order dated 06.08.2014 has observed as under:

“As the findings of Hon’able Lahore High Court, Lahore and findings of learned revisional court/learned predecessor of this court are clear to the point that provisions of Section 12(2) CPC were not to be invoked by any manner and according to this court Section 12(2) CPC was added by the present respondents of instant revision petition to justify the delay for institution of petition under Order 9 Rule 13 CPC.” Whereas this Court vide its earlier order dated 13.05.2014 had not commented upon maintainability of

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the said application under Section 12(2) CPC, therefore, observations of the revisional court to the extent of application under Section 12(2) CPC are not in accordance with the remand order and the said court has erroneously observed that High Court had declared that provisions of Section 12(2) CPC were not to be invoked in the matter which is apparent from para 8 of the order of this Court which is reproduced below:

“Resultantly, this petition is allowed, the order dated 13.04.2009, passed by a learned Additional District is set-aside and order dated 19.07.2008 is restored. The revision petition filed before District Judge shall be deemed to be pending.”

6.Perusal of said order shows that this Court while setting-aside the order dated 13.04.2009 passed by the revisional court had observed that revision petition filed before the District Judge shall be deemed to be pending which means that the High Court had remanded the entire matter instead of only portion of the order relating to decision of application under Section 5 of the Act, therefore, having proceeded on erroneous assumption for deciding the matter through order dated 06.08.2014, the revisional court does not appear to have properly exercised jurisdiction vested in it and consequently, the

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said order based on erroneous exercise of jurisdiction is liable to be set-aside.

7.For what has been discussed above, this constitutional petition is allowed, the impugned order dated 06.08.2014 is set-aside and the matter is remanded to the revisional court where the revision petition filed by the respondents shall be deemed to be pending and shall be decided afresh after providing opportunity of hearing to both the parties as expeditiously as possible preferably within a period of four months from receipt of the order of this Court. Both the parties are directed to appear before the said Court on 30.04.2019.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *