2016 Y L R Note 109
2016 Y L R Note 109
[Lahore]
Before Amin-ud-Din Khan, J
MUHAMMAD BAKHSH---Petitioner
Versus
PROVINCE OF PUNJAB through Collector, District Bhakkar and 15 others---Respondents
Civil Revision No.1852 of 2004, heard on 28th February, 2013.
(a) Civil Procedure Code (V of 1908)---
----S.12---Specific Relief Act (I of 1877), S.42---Bar to further suit---Decree for declaration, passed by the Court of competent jurisdiction, in favour of defendant was in existence declaring him the owner of suit property, which was challenged through an application under S.12(2) of C.P.C. but same was dismissed for non-prosecution and no further steps were taken for setting aside the decree except filing of suit challenging the judgment and decree---Plaintiffs were precluded from challenging the judgment and decree passed by the court of competent jurisdiction by filing suit. [Para. 4 of the judgment]
(b) Specific Relief Act (I of 1877)---
----S.42---Suit for declaration---Decree passed in suit for declaration could not be challenged in a suit, therefore, in existence of such a decree, declaration could not be granted---Judgment and decree passed by Court of competent jurisdiction could not be set aside in the subsequently filed suit. [Para. 4 of the judgment]
A.G. Tariq Chaudhry for Petitioner.
Hafiz Khalil Ahmad for Respondents Nos.2 to 16.
Muhammad Nasir Chohan, A.A.G. along with Hassan Askari, Tehsildar Bhakkar for Respondent No.1.
Date of hearing: 28th February, 2013.
JUDGMENT
AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioner-defendant No.2 has challenged the judgment and decree dated 08.04.2004 passed by learned Addl: District Judge, Bhakkar, whereby the appeal filed by him was dismissed, and the judgment and decree dated 12.01.2002 passed by learned Civil Judge, Bhakkar, whereby the suit for declaration filed by the respondents-plaintiffs was decreed.
2. At the very outset learned counsel for the petitioner has drawn the attention of this Court that in the suit, judgment and decree dated 04.04.1984 passed by learned Civil Judge have been challenged and in existence of the same there is no case of respondents-plaintiffs. Learned counsel argues that both the courts below fell in error while decreeing the suit, when they were having no jurisdiction to set aside the judgment and decree passed by a court of competent jurisdiction in an earlier declaratory suit in the light of provision of section 12(2) of the C.P.C.
3. On the other hand, on this legal point to satisfy this Court learned counsel for the respondents-plaintiffs argues that an application under section 12(2) of the C.P.C. was moved to set aside the above said judgment and decree but subsequently the same was dismissed for non-prosecution, as the matter was compromised between the parties. At this stage, a query was put to learned counsel for the respondents-plaintiffs that when the matter was compromised, then how the plaintiffs-respondents were entitled to challenge the judgment and decree dated 04.04.1984, whereby the petitioner/ defendant No.2 was declared owner of suit property. Learned counsel states that as the Board of Revenue has decided the matter against the plaintiffs-respondents, therefore it necessitated them to file the suit in hand for declaration and also challenge the judgment and decree dated 04.04.1984 in the suit, wherefrom this civil revision has arisen.
4. The question is very simple and of legal nature. When admittedly there was a decree of declaration in existence passed by the court of competent jurisdiction in favour of petitioner/defendant No.2 declaring him the owner of suit property, which was challenged through an application under section 12(2) of the C.P.C. filed by the respondents-plaintiffs, the same was dismissed for non-prosecution and no further steps were taken by the plaintiffs-respondents for setting aside the decree except filing of suit in hand wherein they have also challenged that judgment and decree, therefore in these circumstances the plaintiffs were precluded from challenging the judgment and decree dated 04.04.1984 passed by a court of competent jurisdiction in the suit in hand on whatever grounds may be. When the decree cannot be challenged in the suit, therefore in existence of the decree, declaration claimed by the plaintiff/respondents in the suit could not have been granted to them and the courts below were not entitled to set aside the said judgment and decree in this suit. In this legal position the impugned decrees passed by both the courts below whereby the suit of the respondents-plaintiffs has been decreed and appeal against thereof by the petitioner/defendant No.2 has been dismissed, are nullity in the eye of law. In this view of the matter, if any rights were available to the plaintiffs with regard to a compromise arrived at between the parties in the proceedings under section 12(2) of the C.P.C., they may have avail their proper remedy before the competent forum or may have move for the revival of application under section 12(2) of the C.P.C., but I am clear in my mind that the judgment and decree passed by a court of competent jurisdiction cannot be set aside in the subsequently filed suit in the circumstances of this case. As such, the judgments and decrees passed by both the courts below are not sustainable under the law.
5. For the foregoing reasons, this civil revision is allowed and the impugned judgments and decrees passed by both the courts below are set aside. The result would be the suit filed by the respondents-plaintiffs shall stand dismissed with no order as to costs.
ZC/M-61/L Revision allowed.
[Lahore]
Before Amin-ud-Din Khan, J
MUHAMMAD BAKHSH---Petitioner
Versus
PROVINCE OF PUNJAB through Collector, District Bhakkar and 15 others---Respondents
Civil Revision No.1852 of 2004, heard on 28th February, 2013.
(a) Civil Procedure Code (V of 1908)---
----S.12---Specific Relief Act (I of 1877), S.42---Bar to further suit---Decree for declaration, passed by the Court of competent jurisdiction, in favour of defendant was in existence declaring him the owner of suit property, which was challenged through an application under S.12(2) of C.P.C. but same was dismissed for non-prosecution and no further steps were taken for setting aside the decree except filing of suit challenging the judgment and decree---Plaintiffs were precluded from challenging the judgment and decree passed by the court of competent jurisdiction by filing suit. [Para. 4 of the judgment]
(b) Specific Relief Act (I of 1877)---
----S.42---Suit for declaration---Decree passed in suit for declaration could not be challenged in a suit, therefore, in existence of such a decree, declaration could not be granted---Judgment and decree passed by Court of competent jurisdiction could not be set aside in the subsequently filed suit. [Para. 4 of the judgment]
A.G. Tariq Chaudhry for Petitioner.
Hafiz Khalil Ahmad for Respondents Nos.2 to 16.
Muhammad Nasir Chohan, A.A.G. along with Hassan Askari, Tehsildar Bhakkar for Respondent No.1.
Date of hearing: 28th February, 2013.
JUDGMENT
AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioner-defendant No.2 has challenged the judgment and decree dated 08.04.2004 passed by learned Addl: District Judge, Bhakkar, whereby the appeal filed by him was dismissed, and the judgment and decree dated 12.01.2002 passed by learned Civil Judge, Bhakkar, whereby the suit for declaration filed by the respondents-plaintiffs was decreed.
2. At the very outset learned counsel for the petitioner has drawn the attention of this Court that in the suit, judgment and decree dated 04.04.1984 passed by learned Civil Judge have been challenged and in existence of the same there is no case of respondents-plaintiffs. Learned counsel argues that both the courts below fell in error while decreeing the suit, when they were having no jurisdiction to set aside the judgment and decree passed by a court of competent jurisdiction in an earlier declaratory suit in the light of provision of section 12(2) of the C.P.C.
3. On the other hand, on this legal point to satisfy this Court learned counsel for the respondents-plaintiffs argues that an application under section 12(2) of the C.P.C. was moved to set aside the above said judgment and decree but subsequently the same was dismissed for non-prosecution, as the matter was compromised between the parties. At this stage, a query was put to learned counsel for the respondents-plaintiffs that when the matter was compromised, then how the plaintiffs-respondents were entitled to challenge the judgment and decree dated 04.04.1984, whereby the petitioner/ defendant No.2 was declared owner of suit property. Learned counsel states that as the Board of Revenue has decided the matter against the plaintiffs-respondents, therefore it necessitated them to file the suit in hand for declaration and also challenge the judgment and decree dated 04.04.1984 in the suit, wherefrom this civil revision has arisen.
4. The question is very simple and of legal nature. When admittedly there was a decree of declaration in existence passed by the court of competent jurisdiction in favour of petitioner/defendant No.2 declaring him the owner of suit property, which was challenged through an application under section 12(2) of the C.P.C. filed by the respondents-plaintiffs, the same was dismissed for non-prosecution and no further steps were taken by the plaintiffs-respondents for setting aside the decree except filing of suit in hand wherein they have also challenged that judgment and decree, therefore in these circumstances the plaintiffs were precluded from challenging the judgment and decree dated 04.04.1984 passed by a court of competent jurisdiction in the suit in hand on whatever grounds may be. When the decree cannot be challenged in the suit, therefore in existence of the decree, declaration claimed by the plaintiff/respondents in the suit could not have been granted to them and the courts below were not entitled to set aside the said judgment and decree in this suit. In this legal position the impugned decrees passed by both the courts below whereby the suit of the respondents-plaintiffs has been decreed and appeal against thereof by the petitioner/defendant No.2 has been dismissed, are nullity in the eye of law. In this view of the matter, if any rights were available to the plaintiffs with regard to a compromise arrived at between the parties in the proceedings under section 12(2) of the C.P.C., they may have avail their proper remedy before the competent forum or may have move for the revival of application under section 12(2) of the C.P.C., but I am clear in my mind that the judgment and decree passed by a court of competent jurisdiction cannot be set aside in the subsequently filed suit in the circumstances of this case. As such, the judgments and decrees passed by both the courts below are not sustainable under the law.
5. For the foregoing reasons, this civil revision is allowed and the impugned judgments and decrees passed by both the courts below are set aside. The result would be the suit filed by the respondents-plaintiffs shall stand dismissed with no order as to costs.
ZC/M-61/L Revision allowed.
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