Shakil Ahmad vs Mst Asia Abid

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,

MULTAN.

JUDICIAL DEPARTMENT

C.M.No.3-C of 2021 (u/s 12(2) CPC)

Shakeel Ahmad Versus Mst. Asia Abid etc.

In Civil Revision No.1064 of 2010

Sr.No. of Date of Order with signatures of Judge and that of parties Order/ Order/ or counsel, where necessary. Proceeding Proceeding

18.02.2021 Ms. Farah Sharif Khosa, Advocate for the applicant.

Through application for condonation of delay, the applicant (Shakeel Ahmad) has prayed for condoning the delay occurred in filing the application under Section 12 (2) CPC filed by the applicant Shakeel Ahmad (respondent No.2 in the main Civil Revision) contending therein that while passing the impugned judgment dated 02.10.2015 in Civil Revision No.1064/2010, neither any notice was issued nor his service of notice was effected nor any hearing was afforded to the applicant, as such, judgment dated 02.10.2015 is liable to be set aside and revision petition may be decided on merits after providing an opportunity of hearing to the applicant.

2.I have heard the learned counsel for the applicant and gone through the record with her able assistance.

In Civil Revision No.1064 of 2010

3.Mst.Asia Abid, respondent No.1 was married with the applicant but this wedlock dissolved through effectiveness of the divorce between the spouses. Respondent No.1 filed suit for eviction of the applicant as well as his parents (respondents No.2 & 3) from the house in question. The suit was contested by the defendants and the same was dismissed by the trial court. Appeal whereof was also dismissed by the appellate Court. The decisions of the lower fora were assailed by respondent No.1 in C.R.No.1064 of 2010. This Court vide judgment dated 02.10.2015 while accepting the said Civil Revision set aside the concurrent judgments & decrees of the learned courts below and decreed the suit for possession of respondent No.1 / Mst. Asia Abid as prayed for. Being dis-satisfied with above decision the applicant as well as his parents (Jamil Ahmad respondent No.2 and Kaniz Mia respondent No.3) filed Civil Appeal No.23-L/16 in the Hon’ble Apex Court. Xerox copy of the parties’ names (title page) of the above appeal is as under:-

In Civil Revision No.1064 of 2010

The said appeal was dismissed for non-prosecution by the Hon’ble Supreme Court of Pakistan vide order dated 23.11.2018. For ready reference, order dated 23.11.2018 is reproduced as under:- “Despite repeated calls, no one has entered appearance on behalf of the appellants. This appeal is barred by time as well. Though there is an application for condonation of delay but the reasons given in the said application for condoning the delay are not acknowledged in law. Therefore, C.M.A. No.363-L of 2016 is dismissed for being without merit. Consequently, the instant

In Civil Revision No.1064 of 2010

civil appeal is dismissed for non-prosecution as well as for being barred by time.”

Against the said order, applicant and respondents No.2 & 3 filed Civil Review Petition i.e. CMA Nos.311-L & 312-L of 2020 which are pending before the Hon’ble Supreme Court of Pakistan.

Through the instant application under Section 12(2) CPC the applicant seek setting aside the judgment and decree of this Court dated 02.10.2015 only on the ground of non-effectiveness of service of notice as well as non-affording a fair opportunity of hearing to him. Suffice it to say in this regard that admittedly the applicant and his parents (respondents No.2 and 3) were / are living under one ceiling having their present address of the residence as mentioned in the instant application as well as in the suit , appeal and even in the civil revision is the same which is as under:- Address of the P.O.Khas Mana Ahmdani Shari Application:- Tehsil Kot Chutta District Dera Ghazi Khan.

and it is unbelievable that he remained unaware about the proceedings for such a long time since commencing / initiation of the very suit.

The main brunt of the argument of the learned counsel for the applicant was upon the non- effectiveness of notice upon applicant. From perusal

In Civil Revision No.1064 of 2010

of the record shows that the order for issuance of notice to the respondents (in C.R) was passed on 15.10.2014. Respondents (the applicant and his parents) filed power of attorney vide Diary No.6167 dated 06.11.2014. Scanned copy of the same is as under:-

Perusal of the original power of attorney tendered in civil revision shows that it contains name and

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signature of the three executants i.e. the applicant and his parents but subsequently the name of the applicant jotted in the below center of power of attorney and amid the signature of his parents has been masked/removed by applying Fluid and his signatures are found thickly crossed but the same are identifiable/ readable even with naked eyes. A bare perusal of the impugned notice dated 15.5(year is missing) shows that the said notice neither bears issuing diary number as well as the signature of concerned Asst. Registrar of Civil Branch nor any order was passed regarding issuance of fresh notice by this Court, as such, the same is unauthorized fictitious notice which wear no sanctity in the eye of law rather it appears that the applicant deliberately applied malafide contrivance to prolong the litigation as well as to harass the respondent No.1 and deprive her from the usufruct of the decree in her favour and initiated the instant application which is tainted with blatant malafides, as such, the pleas of the applicant is badly misconceived which is repelled accordingly.

4.Moreover admittedly proceedings under section 12 (2) CPC are independent in nature and party initiating such proceeding is under legal

In Civil Revision No.1064 of 2010

obligation to prima facie furnish/ establish through trustworthy documents the infringement of its title / right due to pronouncement of a judicial decision as well as to plead comprehensively with meticulous information of fraud, misrepresentation played in obtaining decision by the adverse party as per requirements of Order VI Rule 4 CPC but no such informations are expounded with reasonable detail in the application whereas even otherwise application is not supported by any significant documents indicating any infringement of his right.

This Court in absence of any credible material documents / evidence is well within the jurisdiction to summarily reject such application even without issuing of any notice to adverse parties or by framing any issue whereof. It is settled law that it is not necessary for the Courts to decide such application (under Section 12 (2) CPC) after framing the issues and recording of evidence.

Reliance is placed on the case titled as Mian Muhammad Afzaal Hussain Vs. Abdul Latif (1997 SCMR 1382), relevant portion whereof is reproduced as under:-

“We have heard the learned counsel for the parties at considerable length and have also perused the impugned orders as also the application moved by the petitioner under section 12(2), C.P.C. and grant leave to appeal

In Civil Revision No.1064 of 2010

to consider whether in view of the allegations of fraud and collusion/misrepresentation made in the application under section 12(2), C.P.C., it was not necessary for the trial Court to have decided the application after framing necessary issues and allowing opportunity to the petitioner to lead evidence in support of his allegations.”

In another case titled as Mst. Ume Kalsoom Vs.

Zahid Bashir through LRs & Another (1999 SCMR 1696), the Hon’ble Supreme Court of Pakistan held as under:-

“9....Since the learned trail Court was satisfied that there was absolutely no element of fraud or misrepresentation, and no prima facie case or reasonable grounds existed for setting aside the decree in question, it had rightly declined to frame any issue or record evidence on the application made under section 12(2), C.P.C.”

Reliance is also placed on the case cited as Mrs.

Amina Bibi through General Attorney Vs. Nasrullah & Others (2000 SCMR 296), relevant portion whereof is reproduced as under:-

“Be that as it may, while dealing with the allegations under section 12(2), C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held in Amiran Bibi v. Muhammad Ramzan (1999 SCMR 1334). In the instant case, we have gone through the application under section 12(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner under section 12(2), C.P.C., was liable to be dismissed without formulating issues and recording evidence of the parties. ”

Further reliance is placed on the case titled as Mst.

Nasira Khatoon & Another Vs. Mst. Aisha Bai & 12

In Civil Revision No.1064 of 2010

Others (2003 SCMR 1050) in which the Hon’ble Supreme Court of Pakistan held as under:- “7. The remedy of civil suit available for setting aside the judgment and decree obtained by fraud and misrepresentation prior to the enactment of subsection (2) of section 12, C.P.C. was taken away by this subsection but this remedy would not be available like a regular suit and the Court may dispose of an application under section 12(2), C.P.C. without framing issues, recording evidence of the parties and following the procedure for trial of the suit.”

5.Admittedly, appeal of the applicant was dismissed for want of prosecution and CMA for its restoration are still pending before the Hon’ble Supreme Court of Pakistan, whereas all the above mentioned facts have not been disclosed in the instant application, as such the applicant on the basis of concealment of material facts filed the instant application which deserves dismissal.

Reliance is placed on Mst. Shahida & Another Vs.

Board of Intermediate & Secondary Education, Larkana through Chairman, at Larkana & 5 Others (PLD 2001 SC 26), Muhammad Sharif Vs.

Additional District Judge & Others (2007 SCMR 49), Sayed Abbas Taqi Mehdi Vs. Mst. Sayeda Sabahat Batool & Others (2010 SCMR 1840).

Besides above determination it is quite appropriate that against an adverse order /

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judgement / decree the aggrieved person / party has as many as four remedies which are as under

1.Remedy of Appeal.

2.Review under Section 114 or Order 47 CPC.

3.Application under Order IX Rule 13 CPC.

4.Application under Section 12 (2) CPC.

But once after due deliberation a remedy out of the above available remedies has been selected and availed by a party thereafter the remaining remedies shall automatically stand abated / extinguished under the principle of election and such party is debarred to resort to the other remedies Reliance is placed on Trading Corporation of Pakistan Vs Devan Sugar Mills Limited & Others (PLD 2018 SC 828) wherein it has been held as under:- “11. In this view of the matter, the impugned judgment of the learned bench of the High Court cannot be sustained. Fair trial, does not envisage recourse to successive remedies one after another against one and the same impugned order on substantially same set of facts and pleadings seeking substantially similar relief, as it would be against the doctrine of election, as expounded above.....”

An alike controversy has already been resolved by this Court in a case titled as Jubilee General Insurance Company Ltd. Vs Ravi Steel Company through Proprietor (2020 CLC 1440) which judgment has been upheld by the Hon'ble Supreme Court of Pakistan vide judgment cited as Jubilee General Insurance Co. Ltd., Karachi Vs Ravi Steel Company, Lahore (PLD 2020 SC 324).

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Admittedly applicant has assailed the judgement / decree dated 02.10.2015 of this Court in Civil Appeal No.23-L-16 before The Honorable Supreme Court of Pakistan as such he is debarred to reagitate through the instant application under section 12(2) CPC the same issues which had already been decided by this Court.

6.For the foregoing reasons these applications are dismissed in limine with cost of Rs.2,00,000/- to be recovered as arrears of land revenue. Copy of this order be supplied to the Assistant Commissioner concerned for further appropriate action.

(CH. MUHAMMAD IQBAL)

JUDGE

Shahzad Mahmood