Muhammad Javed Malik vs Ad&Sj Rawalpindi etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

W.P. No.886 of 2023 Muhammad Javed Malik Versus AD&SJ, Rawalpindi, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of proceeding. proceeding parties or counsel, where necessary.

27.04.2026 Sardar Muhammad Hafeez Khan, Advocate for petitioner.

C.M No.01 of 2026 Instant application under Section 12 (2) of CPC has been moved by the petitioner through Special Attorney (Muhammad Shahzad) for setting aside order dated 19.02.2026 passed by this Court whereby W.P No.886 of 2023 was disposed of being not pressed on the statement of Mr. Muhammad Sajid Khan Tanoli, Advocate, learned counsel for the petitioner, appointed by Gul Taj Abbasi, attorney of the petitioner.

2.Brief facts of the case are that Muhammad Sattar Azeem predecessor of respondents No.4 to 7 filed suit for specific performance against Muhammad Sadiq Malik (father of petitioner). In that suit, Abdul Rauf (respondent No.8) had been appearing as attorney of father of the petitioner. Said suit was decreed vide judgment and decree dated 28.07.1994.

3.During execution proceedings of above said judgment and decree, registered sale-deed and mutations were executed in favour of decree holder Muhammad Sattar Azeem (predecessor in

interest of respondents No.4 to 7). After the death of Muhammad Sattar Azeem (decree holder), Nasir Jabbar Khan and Asif Jabbar Khan (respondents) purchased the suit property from the legal heirs of Muhammad Sattar Azeem in the year 2010. At that time, no litigation of any kind qua the suit property was pending in any Court of law.

4.Suit property was under the occupation of two tenants. Ejectment petitions were filed by Nasir Jabbar Khan and Asif Jabbar Khan (respondents) which were accepted. Orders of acceptance of ejectment petitions were challenged before this Court by filing F.A.Os. Meanwhile, Muhammad Sadiq Malik (father of petitioner) has challenged ownership of Nasir Jabbar Khan and Asif Jabbar Khan (respondents) by filing suit for declaration which was decreed ex-parte but that decree was set aside by accepting application under Section 12 (2) CPC, thereafter, suit of Muhammad Sadiq Malik (father of petitioner) was dismissed due to non- prosecution.

5.During the pendency of said suit, Muhammad Sadiq Malik (father of petitioner) challenged judgment and decree dated 28.07.1994 by filing petition under Section 12 (2) CPC by impleading respondents No.4 to 7 as respondents but has not made party to respondents No.2 & 3 (Nasir Jabbar Khan and Asif Jabbar Khan) who have become owner of suit property after its purchase discussed above.

6.Nasir Jabbar Khan and Asif Jabbar Khan (respondents) moved an application under Order 1 Rule 10 CPC for impleadment of party in the

application under Section 12 (2) CPC which was allowed but said order was set-aside by the Revisional Court in Civil Revision filed by Muhammad Sadiq Malik (father of petitioner). Nasir Jabbar Khan and Asif Jabbar Khan (respondents) filed W.P No.272/2020 which was admitted for regular hearing but in the meantime, during pendency of said writ petition application under Section 12 (2) CPC filed by Muhammad Sadiq Malik (father of petitioner) was accepted vide order dated 08.01.2020 and writ petition of Nasir Jabbar Khan and Asif Jabbar Khan (respondents) was disposed of having become infructuous. Nasir Jabbar Khan and Asif Jabbar Khan (respondents) challenged order dated 08.01.2020 by filing appeal, which was accepted vide order dated 30.09.2020 and matter was remanded to the trial Court to decide application under Section 12 (2) CPC after recording of evidence of both the parties but petitioner has not impleaded Nasir Jabbar Khan and Asif Jabbar Khan (respondents) as party in the application. Again application of the petitioner was accepted, which was again challenged by Nasir Jabbar Khan and Asif Jabbar Khan (respondents) before the lower Appellate Court which was accepted vide order dated 05.10.2022 and matter was remanded to the trial Court to decide application under Section 12 (2) CPC on merits after impleading Nasir Jabbar Khan and Asif Jabbar Khan (respondents) as party by providing them opportunity to file their written reply and recording of their evidence.

7.This order dated 05.10.2022 has been challenged by the petitioner through his attorney Malik Amir Afzal by filing W.P No.886 of 2023. During pending of this writ petition, on 30.06.2025 petitioner through his attorney Gul Taj Abbasi while appointing fresh counsel Mr. Muhammad Sajid Khan Tanoli, Advocate submitted his power of attorney along with copy of general power of attorney whereafter he (Mr. Muhammad Sajid Khan Tanoli, Advocate) moved C.M No.1 of 2025 for early hearing of the main case, which was fixed for 27.10.2025. Later on, on 19.02.2026 Mr. Muhammad Sajid Khan Tanoli, Advocate while appearing before this Court submitted that he does not press this petition which was disposed of being not pressed by observing as under:- “Learned counsel for the petitioner does not press this petition which is disposed of as such. However, learned Civil Court is directed to decide the matter in issue within a period of four weeks from the date of receipt of this order.”

8.Admittedly, Nasir Jabbar Khan and Asif Jabbar Khan (respondents) purchased the suit property when there was no litigation relating to it. They have purchased suit property from legal heirs of Muhammad Sattar Azeem (decree holder). Petitioner moved an application under Section 12 (2) CPC for setting aside judgment and decreed dated 28.07.1994 but has not impleaded Nasir Jabbar Khan and Asif Jabbar Khan (respondents) as party being owners of the suit property.

9.Copy of power of attorney annexed with the Wakalat Nama shows that Gul Taj Abbasi is a constituted attorney of the petitioner which fact

has also been admitted by the petitioner in the instant petition. Relevant portions of general power of attorney in favour of Gul Taj Abbasi are hereby reproduced:-

زمدی،" اتخمراعموموصفرہبقوحمالابالیکتبسندقمامتیکریپویرکے ،دقمامت دارئ رکان وصقمد وہں وت اتخمری اعم دقمامت دعاتل اہےئ دویاین ، ولیک اڈیوٹیک رقمر رکے،امل و رپسمی وکرٹ آف اپاتسکن دارئ رکے "دروخاتسرہمسقدے۔،واکتلانہمدے اہشدت شیپ دعاتل،ذعرات شیپ رکے/وعی ٰ "دقمامت ںیم وجادب رخہچ، لیمعت رکے، ونسٹ ولکناےئ، رخہچ وگااہن دالخ رکے،رکے ٰ ،دوعی ارقتسارِ قح ،دوعی دصور مکح اانتمیع دوایم ٰ ،ااہتشر عمج رکاےئ مکح،دوعی واسپ ویلے ٰ ،دوعی دایلخیب دارئ رکے ٰ ،دوعی لیمکتِ صتخم

ہلصیف الخف وہےن یک، اتدیکی اجری رکاےئ،اانتمیع اعریض و دوایم زمدی سج دقر یھب، وصرت ںیم دعاتل اجمز ںیم الیپ در الیپ رکے دقمامت رضوری وہں وت دقمامت ولرئ وکرٹ ات رپسمی وکرٹ آف اپاتسکن اتخمر اعم، ارجا ءاحلص رکے، میسقت ارایض یک اکروایئ رکے،دارئ رکے ، اابقیل ایبن دے،وموصف ذموکر یسک یھب دقمہم ںیم اصمتحل رکے "ڈرگیرکاےئ،دربتسداریداے،رایضانہمرکے

When a person withdraws petition through his duly authorized attorney, his withdrawal is considered as an act on his behalf. After withdrawal of the petition, an application for revival of the petition on the allegation of fraud is not maintainable. Provisions of Section 12 (2) CPC is narrowly confined to challenge decree obtained by fraud, misrepresentation or lack of jurisdiction. It cannot be invoked merely because a party regrets or disputes the act of its attorney after the act. Acts done by a validly constituted attorney bind the principal unless a fraud or lack of authority is proven which is missing in the present case. Neither Mr. Muhammad Sajid Khan Tanoli, Advocate nor Gul Taj Abbasi (attorney of the petitioner) have submitted their

affidavits in support of instant petition. Since the writ petition is withdrawn by the constituted attorney, subsequent application under Section 12 (2) CPC is misconceived and being not maintainable is dismissed.

(SADAQAT ALI KHAN)

JUDGE

Approved for reporting

JUDGE

Anwaar*