2015 Y L R 2194

2015 Y L R 2194

[Lahore]

Before Atir Mahmood, J

JAVAID RASHEED---Applicant

versus

MUHAMMAD SHARIF and others---Respondents

C.M. No. 3 of 2014 in Writ Petition No.2227 of 2012, decided on 4th July, 2014.

Civil Procedure Code (V of 1908)---

----S.12(2)---Applicant sought setting aside of judgment under S. 12(2), C.P.C.---Validity---Party filing application under S.12(2), C.P.C. was to be aggrieved of order which had been passed on the basis of fraud, misrepresentation or want of jurisdiction---No such element existed nor could be established by applicant, therefore, provision of S. 12(2), C.P.C. was not attracted---Application was dismissed in circumstances.

            Zaheer Zulfiqar for Applicant.

ORDER

            ATIR MAHMOOD, J.---This is an application under section 12(2), C.P.C. for setting aside order dated 16-4-2014 passed by this Court in titled Writ Petition No.2227/2012 whereby direction was given to learned Special Judge Rent, Lahore for disposal of the ejectment petition filed by respondent No.1/writ petitioner within three months positively.

2.         Briefly stated the facts of the case narrated in the application are that after partition of India father of the applicant namely Muhammad Siddique Butt (deceased) took over possession of one of the shops in property No.S-66-R-10 Nila Gumbad Lahore owned by Punjab National Bank, Lahore. The said property was treated as Evacuee property on 24-12-1997 and was allotted to Muhammad Siddique by the name and style of Messrs Muhammad Siddique and Brothers by the Deputy Rehabilitation Commissioner, Lahore but subsequently, on 20-10-1953 the property was restored to the Bank by the Rehabilitation Officer. Later on, there was an agreement to sell dated 10-5-1965 between respondent No.1/writ petitioner and respondent No.2/National Bank. On 11-6-1965, the writ petitioner promised to Muhammad Siddique to sell the property to him. On 6-9-1965, the property was taken over by the Custodian of Enemy Property declaring it as property of the enemy. On 14-2-1996, a joint application signed by parties of agreement to sell was made to Deputy Custodian of Enemy Properties for permission to sell the same in their favour. On 14-5-1969, the Central Government of Pakistan cancelled the agreement to sell dated 10-5-1965 between respondent No. 1 and respondent No.2. Respondent No.1 challenged order dated 14-5-1969 in Writ Petition No.1420/1969 which was dismissed on 30-5-1981. During pendency of this writ petition, the Deputy Custodian of Enemy Properties declared the bona fide allottees entitled to purchase the property after paying the price evaluated by the Settlement Department. The writ petitioner assailed order dated 30-5-1981 in ICA which was allowed and resultantly, the agreement to sell dated 10-5-1965 was restored. On 10-5-1965, respondent No.1 filed a suit for specific performance of an agreement to sell dated 10-5-1965 which was decreed on 28-4-2004. Respondent No.2 challenged it in appeal which was dismissed on 17-12-2004 against which Civil Revision No.396/2005 was instituted which is still pending adjudication before this Court. On 29-5-2004, respondent No.1 filed application for execution of decree dated 28-4-2004 wherein the objections were filed by the applicant which case has been adjourned sine die due to pendency of Civil Revision No.396/2005 before this Court.

3.         On 12-4-2010, respondent No.1 filed application against the applicant for his eviction from the property claiming that the applicant is tenant under him. The applicant appeared before the court and leave to defend was granted to him vide order dated 20-7-2011 and respondent No.1 was refused payment of rent by respondent No.3/learned Special Judge Rent against which the titled writ petition was filed wherein the direction for early disposal of the ejectment petition has been
made to learned Special Judge Rent vide order dated 16-4-2014, hence this application.

4.         Learned counsel for the petitioner inter alia contends that the applicant/his father are in occupation of the shop as tenant under State Bank of Pakistan (Deputy Custodian of Enemy Properties) since 1947 and are regularly paying the rent thereof; that the applicant has got his title of ownership through decree of the court dated 28-4-2004 which is under challenge by respondent No.2 through Civil Revision No.396/2005 before this Court; that the impugned order/direction is likely to cause immediate eviction of the applicant from the property even prior to decision of the said Civil Revision and if happened so, the applicant will have to enter into another round of litigation which is against cannons of justice; that the title writ petition was against an interim order of the Special Judge Rent but this Court while passing the impugned order did not take note thereof; that the impugned order was obtained at the back of the applicant by concealing facts of the case, therefore, this application be allowed and the impugned order be set aside.

5.         Arguments heard. Record perused.

6.         The contentions of the applicant are not tenable. The order passed by this Court was only to the extent that the Special Judge Rent would conclude the trial within three months as fair and early disposal of the case which is right of each and every litigant. In the instant case, the ejectment petition was filed on 12-4-2010 and since then, the trial has not been concluded by learned Special Judge Rent. According to Section 27 of the Punjab Rented Premises Act, 2009, a rent tribunal is under legal obligation to conclude the trial within four months from the date of institution of the ejectment application. In this case, the ejectment petition was filed more than four years ago but the same has not been decided so far. The issuance of direction for early disposal of the ejectment petition is not going to affect rights of the parties including the applicant adversely in any manner. The applicant is already appearing before the learned Special Judge Rent and he has raised there all the objections agitated before this Court in the instant application. Vide impugned order, learned trial court has only been directed to decide the matter in accordance with law after hearing all the parties, as such, the impugned order does not affect rights of the applicant or any other party in any manner.

7.         So far as the contention of learned counsel for the applicant regarding non-affording of opportunity of hearing to him, suffice it to say that every petitioner has right to withdraw his case at any stage with permission of the court and the law does not debar him to do so. Therefore, disposal of the titled writ petition with a direction of early disposal of his case before the lower court does not affect adversely rights of the applicant/respondent in the writ petition.

8.         Furthermore, this application has been filed under Section 12 (2), C.P.C. which reads as under:--

            "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit".

Bare reading of the above provision of law makes it crystal clear that a party filing application under Section 12(2), C.P.C. must be aggrieved of an order which has been passed on the basis of fraud, misrepresentation or want of jurisdiction. No such element exists nor could be established by learned counsel for the applicant, as such, the provision of section 12(2), C.P.C. is not attracted in this case.

9.         For the aforementioned reasons, this application is bereft of any merit, hence dismissed.

MH/J-20/L                                                                               Application dismissed.