2014 C L C 1014

2014 C L C 1014

[Lahore]

Before Mahmood Ahmad Bhatti, J

Mst. ZAINAB and another----Petitioners

Versus

ALLAH WASAYA through L.Rs. and others----Respondents

Civil Revision No.784 of 2013, decided on 18th November, 2013.

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

----S. 12 (2)---Disposal of application filed under S.12(2), C.P.C. without framing of issues---Scope---Limitation---Contention of applicants was that no issue was framed by the Trial Court---Validity---Trial Court was not bound to follow the procedure in detail as provided in Civil Procedure Code, 1908 including the framing of issues in every case---Remedy provided under S.12(2), C.P.C. was intended to be a substitute for a suit but not to be a replication---Present application was time-barred and no application for condonation of delay had been moved---Applicants were kith and kins to the suitors and it could not be presumed  that  they  remained  unaware  for  over  4-½  years---Present application was moved with ill-will, animus and malice of applicants---No illegality and infirmity had been pointed out in the impugned  order---Revision was dismissed in limine.

            Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; Warriach Zarai Corporation v. F.M.C. United  (Pvt.) Ltd. 2006 SCMR 531; Government of  N.-W.F.P  through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi PLD 2002 SC 500; Nazir Ahmed v. Muhammad  Sharif and others 2001 SCMR 46; Mrs. Amina Bibi through General Attorney v. Nasrullah  and others 2000 SCMR 296; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Government of Sindh v. Fazal Muhammad PLD 1991 SC 197  rel

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 42 & 34-A---Registered deed, incorporation in Revenue   Record---Scope---Revenue Officer was bound to incorporate registered deed in the revenue record irrespective of the fact whether same was presented  to  him  or  it  came  to  his  knowledge  through  any source.

            Umer Din v. Muhammad Anwar 2003 YLR 67 and Syed Ghulam Sabir Gillani v. Ghulam Muhammad 2005 MLD 38  rel.

            Sh. Inam-ur-Rehman Ashraf for Petitioner.

ORDER

            MAHMOOD AHMAD BHATTI, J.--- This revision petition is directed against the order dated 13-8-2013 passed by the learned District Judge, Dera Ghazi Khan whereby he dismissed the petition of the petitioners under section 12(2), C.P.C.

2.         It would be in order to recapitulate the background in which the petition under section 12(2), C.P.C. came to be instituted, that led to the filing of the instant revision petition. Allah Wasaya, predecessor-in-interest of respondents Nos.1-A to 1-H purchased land measuring 1 Kanal, 17 Marla; situated in Mouza Pir Aadil through a registered Sale-deed No.121 dated 27-3-1986 from Mst. Bakht Wadi deceased (predecessor-in-interest of respondents Nos.2 to 15). However, the said sale could not be incorporated in the Revenue Record. After some years, Allah Wasaya, the predecessor-in-interest of respondents Nos.1-A to 1-H learnt of the non-incorporation of the of aforementioned sale-deed in the Revenue Record. In order to get the revenue record rectified and to declare his rights derived under the aforesaid sale, he instituted a suit for declaration, which was decreed vide judgment and decree dated 6-2-2006 by the learned Civil Judge, D.G. Khan. An appeal was filed by Sonhara, Qadir Bakhsh and Imam Bakhsh to call into question the validity of the judgment and decree dared 6-2-2006. The appeal was partly allowed vide judgment and decree dated 15-1-2007 passed by learned District Judge, D.G. Khan, without detracting anything from the rights and interests of Allah Wasaya, which he had acquired by virtue of Sale-deed No.1121 dated 27-3-1986.

3.         It seems that in pursuance of the judgment and decree dated   15-1-2007 passed by the learned District Judge, the Revenue Record was rectified. The petitioners herein kept mum for a considerable period of time, and then chose to file a petition under section 12(2), C.P.C. in the court of learned District Judge, D.G. Khan on 5-9-2011. Thereupon, respondents were summoned. After taking into consideration the material placed before him and having heard the arguments of the learned counsel for the parties, the learned District Judge, D.G. Khan proceeded to dismiss the aforesaid petition vide order dated 13-8-2013.

4.         Feeling aggrieved by the order dated 13-8-2013 passed by the learned District Judge, D.G. Khan, the petitioners have filed the instant revision petition to call into question the validity thereof.

5.         As is pretty clear from the grounds of revision, the main contention of the petitioners is that no issue was framed by the learned court below, thereby committing material irregularity within the meaning of section 115, C.P.C. and as such the impugned order is liable to be revised by this Court. At the same time, it was maintained by the petitioners that they are bona fide purchasers for valuable consideration without notice, and that their rights and interests vis-a-vis the suit-land were secured under the various provisions of the Transfer of Property Act, 1882.

6.         I have perused the order dated 13-8-2013 passed by learned District Judge, D.G. Khan, dismissing the petition under section 12(4), C.P.C. filed by the revision petitioners. Learned counsel for the petitioners has also been heard at length and I have also minutely examined the record appended to the revision petition.

7.         Since it was the main contention of the petitioners that the learned court below was required to frame issues before deciding the petition under section 12(2), C.P.C., it would be advisable to deal with this aspect of the case before dilating upon other contentions of the learned counsel for the petitioners. The court concerned in which application under section 12(2), C.P.C. is moved, is not bound to follow the procedure spelt out in detail in the C.P.C. including the framing of issues in every case. The reason is not far to seek. The remedy provided under section 12(2), C.P.C. is intended to be a substitute for a suit, not to be a replication thereof. It was held by the August Supreme Court of Pakistan in the case of `Ghulam Muhammad v. M. Ahmad Khan and 6 others' (1993 SCMR 662) that:---

            "…. Framing of issues in every case to examine the merits of the application would certainly frustrate object of section 12(2), C.P.C. which is to avoid, protracted and the time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts below which are already overburdened."

8.         It was further observed in the afore-quoted judgment that:---

            "…. In our view, the matter is left to the satisfaction of the court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal as in consonance with justice, the circumstances of the case may require.---"

9.         The observations of the august Supreme Court of Pakistan in the cases of `Warriach Zarai Corporation v.  F.M.C. United  (Pvt.) Ltd. (2006 SCMR 531), `Government of  N.-W.F.P  through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others' (2003 SCMR 104), `Messrs Dadabhoy Cement Industries  Ltd. and 6 others v. National Development Finance Corporation Karachi' (PLD 2002 SC 500), Wazir Ahmed v. Muhammad  Sharif and others' (2001 SCMR 46), `Mrs. Amina Bibi through General Attorney v. Nasrullah  and others' (2000 SCMR 296) and Amiran Bibi and others v. Muhammad Ramzan and others' (1999 SCMR 1334) also point in the same direction.

10. In the case of `Messrs Dadabhoy Cement Industries  Ltd. and 6 others v. National Development Finance Corporation, Karachi' (PLD 2002 SC 500), the law on the subject was encapsulated. The relevant extract from the judgment is reproduced hereunder:---

            "As for the allegation that the compromise decree was obtained by fraud, coercion and misrepresentation, the parties failed to substitute the same as no particulars or details thereof had been given in their application under section 12(2), C.P.C. and mere allegation not supported by any material, would not invariably warrant inquiry or investigation in each case. It is for the trial court to see whether the facts and circumstances of the case require further probe into the allegations or not. Where the court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it can dispense with the same and proceed to decide the application. So it is not incumbent on the trial court to frame issues in each tend every case but it depends upon the facts and circumstances of each case." (Emphasis added).

11.       As is obvious from a perusal of the order dated 3-8-2013 impugned before this Court, the petition moved by the petitioners under section 12(2), C.P.C. was also barred by time.

12.       It was held by the Hon'ble Supreme Court in the case of 'Government of Sindh v. Fazal Muhammad' (PLD 1991 SC 197) as follows:---

            "…. The period for such an application, as provided in the Article [181 of the Limitation Act] is three years when the right to apply accrues i.e. the date when the judgment, decree or order was obtained by fraud, misrepresentation or without jurisdiction…"

13.       Undeniably, no application for condoning the delay accompanied the application under section 12(2), C.P.C.

14.       It is hard to believe that the applicants, who are kiths and kins of appellant No.1 and appellant No.2 in Civil Appeal No.15 of 2013 titled `Sonahar and others v. Alla Wasaya' would have renamed unaware for over 4-1/2 years. Nowhere in the application was it alleged by them that the applicants bore ill-will, animus, malice towards them. In the circumstances, it could safely be assumed that those appellants are in fact pulling the strings with the object of prolonging the agony of the descendants of Alla Wasaya.

15.       The application was not only time-barred, but on the surface, was prompted by objects other than bona fides. The learned District Judge, Dera Ghazi Khan was very observant and discerning in pinpointing the relationship of the applicants with the original  appellants.

16.       In view of the above discussion, the petitioners have failed to point out any illegality and infirmity in the order dated 3-8-2013 passed by the learned District Judge, Dera Ghazi Khan.

17.       Before parting with this judgment, it is observed that both the Revenue Authorities and the Registration Authorities are amenable to the Supervisory jurisdiction of the Board of Revenue, Punjab, but they do not often act in unison. Whereas the Revenue Officer is under obligation to incorporate a registered deed, in the Revenue Record under section 42 of the West Pakistan Land Revenue Act, 1967 irrespective of the fact whether the same is presented to him or it comes to his knowledge through any source, he leaves it to the Patwari Halqa to proceed in the matter or just to sit tight. This is highly deplorable, to say the least.

18.       It is time to remind the Revenue Authorities that they are in the breach of the law laid down by this Court in the case of 'Umer Din v. Muhammad Anwar' (2003 YLR 67) and reiterated in Syed Ghulam Sabir Gillani v. Ghulam Muhammad' (2005 MLD 38 at 40). It needs to be impressed upon them that Rule 34-A of West Pakistan Land Revenue Rules, 1968 has been framed to achieve the very same object.

19.       The impugned order dated 13-8-2013 is unexceptionable, and the revision petition being without any merit is hereby dismissed in limine.

AG/Z-9/L                                                                                             Petition dismissed.