2013 M L D 1102


2013 M L D 1102

[Lahore]

Before Amin-ud-Din Khan, J

MUHAMMAD ZAMAN---Petitioner

Versus

TOUQEER AHMAD and others---Respondents

Civil Revision No.1798 of 2011, decided on 24th May, 2012.

(a) Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908) S. 12(2)---Suit for declaration of title was decreed by Trial Court---Plaintiff assailed order of Appellate Court whereby the application of the respondents under S.12(2), C.P.C. was allowed, and case was remanded with the direction to the Trial Court to implead  the  respondents  as  defendants  in  the  suit---Plaintiff contended that the respondents had purchased suit property during pendency of the suit and therefore, principle of lis pendens  would be applicable---Validity----Respondents, under law, would step into the shoes of their transferors, who were party to the suit and were entitled to at least defend the suit to the extent of the rights of their transferors---Order of Appellate Court could not be interfered with---Revision was dismissed.

            Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564; Sardar Muhammad Ayub v. Pakistan through Secretary Ministry of Resttlement and Rehabilitation, Rawalpindi and others 1969 SCMR 96(2); Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan and another 1974 SCMR 371 and Mst. Zainab and others v. Fazal Dad and others PLD 1966 (W.P.) Lah. 1050 ref.

(b) Administration of justice---

----When an order was challenged on the basis of lack of jurisdiction, such technicality could not come in the way of fostering justice.

            Ch. Aamer Rehman for Petitioner.

            Sh. Naveed Shaharyar and Qadeer Ahmed Warraich for Respondents Nos.1 and 2.

            Date of hearing: 24th May, 2012.

JUDGMENT

            AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioner has challenged the order dated 18-5-2011 passed by the District Judge, Mandi Bahauddin whereby the application under section 12(2), C.P.C. filed by respondents Nos.1 and 2 was accepted and set aside ex-parte judgment and decree dated 30-6-2008 passed by the learned Senior Civil Judge, Mandi Bahaduddin and judgment and decree dated 24-3-2009 passed by the District Judge Mandi Bahauddin and the case was remanded back to the learned trial court with a direction to implead both the applicants as defendants in the declaratory suit filed by the petitioner-plaintiff and proceed with the case.

2.         Brief facts of the case are that the petitioner filed a suit for declaration on 20-10-1998 that he is owner of the suit property measuring 3 kanal and 5 marla mentioned in the head note of the plaint and stated that the specific sale by the plaintiff in favour of defendant No.2, previous National Industrial Finance Corporation is wrong and sale through registered sale deed No.163 dated 26-6-1996 and Mutation No.1352 attested on 23-2-1998 by the National Industrial Finance Corporation in favour of defendants Nos.3 to 7 with regard to the suit property are against the law and facts which is result of malice and fraud in between the officials of corporation and office of Sub-Registrar, therefore, it is liable to be cancelled. The suit was decreed vide judgment and decree dated 30-6-2008. It is fact that on 21-3-2002 the amended plaint was filed wherein the name of defendant No.2 National Industrial Finance Corporation through Chairman Liquidation Board, Lahore was deleted from the array of the defendants. Tauqeer Ahmed one of the respondents filed an appeal which was dismissed on 24-3-2009. Respondents Nos.1 and 2 then filed an application under section 12(2), C.P.C. on 13-4-2009 before the trial court. Written reply was filed by the petitioner, wherein he raised an objection that application does not lie before the trial court and same is competent before the first appellate court. The learned trial court vide order dated 9-2-2010 dismissed the application on the ground that the application is competent before the District Judge. Then respondents Nos.1 and 2 filed an application under section 12(2), C.P.C. before the learned District Judge on 17-2-2010. The reply was filed. Issues were framed. Evidence was recorded and vide impugned order dated 18-5-2011 the learned District Judge has allowed the application and sent the matter before the learned trial court to decide the suit afresh after impleading the applicants as defendants in the suit, hence this civil revision by the plaintiff.

3.         Learned counsel for the petitioner states that the application was not competent before the learned District Judge. Further that the property has been purchased by the applicants during the pendency of the suit, therefore, principle of lis pendens was applicable and the learned District Judge has ignored this fact. Learned counsel further states that no fraud has been alleged on the merits of the case and further that plaintiff-petitioner was not bound to implead all the persons whose interest started in the property during the pendency of the suit. Relying upon Mubarak Ali v. Fazal Mauhammad and another (PLD 1995 SC 564) learned counsel states that the petition was competent before the learned  trial  court  and  has  wrongly  been  filed  before  the  District  Judge.

4.         On the other hand, learned counsel appearing on behalf of respondents Nos.1 and 2 states that very suit was incompetent in accordance with sections 16 and 17 of the Punjab Undesirable Co-operative Societies (Dissolution) Act I of 1993. Learned counsel states that before passing of the decree the defendant No.2 was deleted from the array of the defendants. The land was sold by the petitioner to defendant No.2 and when he was deleted no decree could have been passed by the learned trial court. Further states that suit was otherwise not competent and by playing fraud upon the court the petitioner plaintiff procured the ex parte decree, as the plaintiff-petitioner himself transferred the property through registered sale deed. Learned counsel states that in reply filed by the petitioner to the application filed under section 12(2), C.P.C. by respondents Nos.2 to 4 before the learned trial court objection was raised by the present petitioner that it is not maintainable before the learned trial court as the appeal was filed and the same was decided by the learned District Judge, therefore, this application is competent before the first appellate court. While relying upon case titled Sardar Muhammad Ayub v. Pakistan through Secretary Ministry of Resettlement and Rehabiliaion, Rawalpindi and  others (1969 SCMR 96(2) and Sh.Muhammad  Anwar v. Ch.Sultan Muhammad Khan and  another (1974 SCMR 371) learned counsel states that the petitioner has participated in  the proceedings before the forum where the application was filed, now he cannot challenge jurisdiction of that court. Further relying upon Mst.Zainab and others v. Fazal Dad and others (PLD 1966 (W.P.) Lahore 1050) it is stated that the petitioner himself raised objection before the learned trial court in a previously filed application under section 12(2), C.P.C. that application does not lie before the learned trial court and the jurisdiction is with the appellate court. He states that now the petitioner cannot turn round and he has no right of objection of jurisdiction.

5.         I have heard the arguments of the learned counsel for the parties and have examined the case-law referred by the learned counsel for the parties.

6.         I have noted that mainly the technical objections with regard to jurisdiction before the learned District Judge and with regard to lis pendens have been raised by the learned counsel for the petitioner. Though the learned counsel for the petitioner has advanced arguments to some extent with regard to the facts of the case and the learned counsel for the respondents has also advanced detail arguments with regard to the facts of the case but I do not want to give any findings or observations on the facts of the case, so that it may not cause prejudice to the merit of the case of any party as yet the learned trial court has to decide the suit on merits after hearing the parties and after holding full trial of the case. The objection of the learned counsel for the petitioner is that it was not competent before the District Judge in the peculiar circumstances of the case. This objection seems to be a highly technical objection. It is one of the fundamental principles of law that when any order is challenged on the basis of lack of jurisdiction, the technicality cannot come in the way to foster justice. The other objection of the learned counsel for the petitioner was that during the pendency of the lis, the applicants have purchased the suit property. Even for the sake of arguments, this objection be considered, the applicants under the law will step into the shoes of their transferors, who were party to the suit. The applicants will be entitled at least to defend the suit to the extent of the rights of their transferors. The objection of the learned counsel for the respondents has some weight as under sections 16 and 17 of the Act referred above, Civil Court was not having jurisdiction and exclusive jurisdiction is with the Co-operative Judge. Learned counsel for the respondents argued when it was petitioner who raised objection in the previously filed application under section 12(2), C.P.C. before the trial court that application is competent before the first appellate court. Now the petitioner cannot be allowed to blow hot and cold in the same breath. In this view of the matter, I see no infirmity or illegality in the findings recorded by the learned District Judge and the learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned order. Therefore, no case for interference by this Court has been made out while exercising jurisdiction under section 115, C.P.C.

            In the light of what has been discussed above, this civil revision having no merit is dismissed.

KMZ/M-224/L                                                                                    Petition dismissed.


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