2013 Y L R 1308


2013 Y L R 1308

[Lahore]

Before Amin-ud-Din Khan, J

Mst. SABHRAI---Petitioner

Versus

WAZIR AHMAD and 16 others---Respondents

Civil Miscellaneous No. 1049-C of 2011 in R.S.A. No.184 of 1984, decided on 1st November, 2012.

(a) Civil Procedure Code (V of 1908)---

----S.12(2)---Punjab Pre-emption Act (IX of 1991), S. 6---Application under S.12(2), C.P.C.---Maintainability---Scope---Suit for pre-emption was decreed---Application under section12 (2) to set aside decree---Contention of applicant was that he had purchased suit property during pendency of suit of pre-emption and said decree should be set aside---Validity---Decree in favour of plaintiff remained intact up to the level of Supreme Court and if any fraud had been committed by the vendor with the applicant, he could separately sue them for commission of fraud---Application under S.12(2), C.P.C. was only  maintainable  when  any  decree   had been procured by practising fraud  upon the court---No allegation of fraud upon the court by decree-holder had been levelled in the application---Application was dismissed, in circumstances.

            Abid Kamal v. Muddassar Mustafa and  others  2000  SCMR  900;  Syed  Nazir Hassan v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434 and Ghulam Muhammad v. M. Ahmad Khan  and  6  others  1993  SCMR  662 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Application under S. 12(2), C.P.C. was dismissed by Trial Court---Applicant thereafter filed another application under S. 12(2), C.P.C. before High Court--- Maintainability--- When applicant had filed application under S.12(2), C.P.C. before Trial Court and it was dismissed, the applicant was bound under law to challenge the dismissal order before a higher forum---Applicant, in the present case, had filed another application before High Court, which was not maintainable.

            Mazhar Ali Bhatti for Applicant.

            Nemo for Respondents.

ORDER

            AMIN-UD-DIN KHAN, J.---Notice was sent by the office to Mr. Junaid Farooq Wajdani, Advocate for respondent for hearing of the case for today, who is stationed at Muzaffargarh but he has sent oral request for adjournment. I am afraid that this conduct of the counsel is not appreciable. It is one of the oldest cases; therefore, I am constrained to hear the ex parte arguments of the learned counsel for the petitioner.

2.         This is an application under  section 12(2), C.P.C. As per narration of the counsel for the petitioner one Nazar Muhammad purchased the suit property through registered Sale-deed No.947 dated 20-5-1977. This sale was pre-empted by Mian Wazir Ahmad etc. The case of the petitioner is that even before the filing of the suit of pre-emption said Nazar Muhammad transferred the suit property through registered sale-deed No.1033 registered on 3-6-1977 in favour of Yar Muhammad etc. Yar Muhammad was also made party in the suit and the suit was decreed by the learned trial Court vide judgment and decree dated 17-7-1983. The same was challenged in appeal before the first appellate court and the appeal was dismissed on 17-10-1984. Both the judgments and decrees have been assailed before this court through RSA No.184 of 1984 and the same was dismissed by this court in limine on 13-11-1984. The matter went up to the august Supreme Court of Pakistan and according to the learned counsel for the petitioner leave was refused and even the review petition was also dismissed.

3.         The case of the applicant is that the petitioner purchased a portion of suit-land through registered sale-deed No.4454 dated 9-5-1992 and said sale-deed was incorporated in the Revenue Record through Mutations Nos.109 and 110 attested on 15-1-1996 and states that these mutations were cancelled through Mutation No.146 dated 8-8-2000. Learned counsel states that against the cancellation of mutation, the petitioner moved before the revenue court and before the trial Court through application under section 12(2), C.P.C. and the same was dismissed vide order dated 21-1-2011 by the learned Civil Judge Muzaffargeh then filed this petition before this court.

4.         When questioned to the learned counsel  for the petitioner that whether the order of learned Civil Judge dismissing the application under section 12(2), C.P.C. on 21-1-2011 has been further challenged before higher forum, the answer is negative. When confronted to the learned counsel  that  how  application  under  section 12(2), C.P.C. is competent when he stepped into the shoes of the judgment debtor during the pendency of the suit. Further when the decree was passed by the learned Civil Judge which remained intact upto the level of august Supreme Court of Pakistan, how this application is competent before this Court when the application under section 12(2), C.P.C. was dismissed by the learned trial Court and the petitioner has not agitated before the higher forum and further the application has been filed after final decision of the August Supreme Court with the delay of more than 12 years. Learned counsel while relying upon case titled Abid Kamal v. Muddassar Mustafa and others (2000 SCMR 900) contends that the application under section 12(2), C.P.C. is competent before the court which finally decided the appeal. With regard to limitation he while relying upon case titled Syed Nazir Hassan  v. Settlement Commissioner, Lyallpur and  another (PLD 1974 Lahore 434) contends that against the void order no limitation runs. Further relying upon case titled Ghulam Muhammad v. M. Ahmad Khan  and 6 others (1993 SCMR 662) argues that persons not party to the suit can also file application under section 12(2), C.P.C. It is admitted by the petitioner that he has purchased the suit property during the pendency of the suit and in the said suit a decree of pre-emption was passed in favour of the plaintiff which remained intact up to the level of august Supreme Court of Pakistan. If any fraud has been committed by the vendor with the applicant, he can separately sue them for commission of fraud. Application under section 12(2), C.P.C. is only maintainable when any decree has been procured by practising fraud upon the court. Even no allegation of fraud upon the court practised by the decree holder has been levelled in this application. The case-law referred by the learned counsel relates to merit of the case of pre-emption, he cannot be permitted to, agitate against  the  merits  of  the  case  as  the  decree granted by the learned trial Court remained  intact  up  to  the  august  Supreme Court of Pakistan. As per the applicant the Mutation in his favour was cancelled  in  the  year  2000  and  he  has  filed this application before this court in the year 2011. It was certainly time barred. Further when he filed application under section 12(2), C.P.C. before the learned trial Court and it was dismissed, the petitioner was bound under the law to challenge the dismissal order before the higher forum but he has filed the application before this court which is not maintainable.

            In the light of what has been discussed above, no ground for invoking jurisdiction   of   this   Court   under   section 12(2), C.P.C. has been made out. Therefore, this application being frivolous is dismissed.

KMZ/S-124/L                                                                         Application dismissed.


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