2013 Y L R 2611


2013 Y L R 2611

[Balochistan]

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ROOHULLAH and 2 others---Petitioners

Versus

QUBAT and 8 others---Respondents

C.P. No.786 of 2011, decided on 19th June, 2013.

Civil Procedure Code (V of 1908)---

----S.12(2)---Specific Relief Act (I of 1877), Ss. 42  &  54--- Constitution of Pakistan, Art.199---Constitutional petition--Decree, setting aside of---Evidence, non-recording of---Suit for declaration and permanent injunction filed by respondents through their attorney was decreed in terms of award passed by arbitrators duly nominated by parties---Application under S.12(2), C.P.C. was filed by petitioners after lapse of more than one year and seven months of passing of judgment and decree by Trial Court---Plea raised by petitioners was that Trial Court should have framed issues and recorded  evidence---Validity---Was not necessary for Trial Court to frame issues and to record pro and contra evidence of parties, when there was no element of fraud and misrepresentation available on record---High Court declined to interfere in judgments and decrees passed by two Courts below---Petition was dismissed in circumstances.

            Lahore Cantt: Cooperative Housing Society Ltd. v. Muhammad Anwar 2007 CLC 160 distinguished.

            Nazir Ahmed v. Muhammad Sharif 2001 SCMR 46 and Mst. Nasira Khatoon v. Mst. Aisha Bai 2003 SCMR 1050 rel.

            Najeebullah Khan for Petitioners.

            Sahibzada Naseem for Respondents Nos. 3 to 5.

            Date of hearing: 15th April, 2013.

ORDER

            GHULAM MUSTAFA MENGAL, J.---This Constitution Petition under Article 199 of Constitution of the Islamic Republic of Pakistan has been filed by the petitioners with the following prayers:--

"(i)        Declare the impugned judgment/ decree dated 7-5-2009 passed by learned Senior Civil Judge, Pishin has been obtained by the respondent No.2 by means of fraud and mis representation and as null and void and having been passed in utter violation of law.

(ii)        The orders dated 12-4-2011 and 28-9-2011 passed by learned Senior Civil Judge and District Judge, Pishin may kindly be declared as null and void.

(iii)       To accept the application under section 12(2) C.P.C. filed by the petitioners or in alternate, the matter be remanded back to the trial Court with direction to frame issues and afford opportunities to both the parties to lead their respective evidence and then decide the case on merits in accordance with law.

(iv)       Any other relief which may deem fit and proper in the circumstances of the case may also be awarded.

(v)        Cost of the petition may also be awarded."

            Facts of the case are that the petitioners filed an application under section 12(2), C.P.C. in the Court of Senior Civil Judge, Pishin on or about 28th December, 2010. The said application was resisted by the respondents by filing separate reply. The learned Senior Civil Judge, Pishin after hearing the learned counsel for the parties dismissed the application vide impugned order dated 12th April, 2011 by holding that the applicants are real sons and brothers of the decree-holders and it is settled principle of Islamic Law that in the lifetime of father the sons, daughters and wives have no any legal right in the property of alive father and the applicants were well aware of the filing of suit, which was decreed on 7th May, 2009 on the basis of Award passed by the Arbitrators and now after profound slumber they awakened and filed the instant application for setting aside judgment/ decree dated 7th May, 2009. Feeling aggrieved of the impugned order, the petitioners preferred Civil Revision Petition bearing No.8 of 2011 before District Judge, Pishin, which has also been dismissed vide impugned order dated 28th September, 2011. The petitioners being aggrieved of the impugned orders of the Courts below have invoked the constitutional jurisdiction of this Court.

3.         Mr. Najeebullah Khan, the learned counsel for the petitioners submitted that the petitioners had no knowledge with regard to the filing of the suit by the respondent No.2 in a concealing manner, referring the matter to so-called Arbitrators and obtaining the judgment and decree dated 7th May, 2009 in a fraudulent manner and by misrepresentation, without pleading the petitioners as party. He further submitted that after getting knowledge the petitioners filed an application under section 12(2), C.P.C. before the learned Senior Civil Judge, Pishin but the same was dismissed by the trial Court without framing issues and recording evidence. Learned counsel has relied upon the case of Lahore Cantt. Cooperative Housing Society Ltd. v. Muhammad Anwar (2007 CLC 160).

4.         On the other hand Sahibzada Muhammad Naseem, learned counsel for the respondents Nos.3 to 5 argued that the Courts below have passed the orders strictly in accordance with the law and provisions of Civil Procedure Code and there is nothing on record to show fraud or misrepresentation.

5.         We have heard the arguments of learned counsel for the parties and have also gone through the record. Respondents Nos.1 and 2, had the knowledge of instant petition and despite service failed to make appearance before this Court, as such, they were proceeded against ex parte vide order dated 15th April, 2013.

6.         Perusal of the record reveals that respondents Nos. land 2 through his duly nominated attorney (respondent No.2) filed suit for declaration and permanent injunction against the respondent Nos.3 to 5 in the Court of Senior Civil Judge, Pishin, which was decreed in terms of Award passed by arbitrators duly nominated by  the parties. The application under section 12(2), C.P.C. has been filed by the petitioners after lapse of more than one year and seven months of the passing of the judgment/decree. After proper appreciation of the contention of the petitioners, the learned Senior Civil Judge has rightly dismissed the application under section 12(2), C.P.C. The learned District Judge has committed no illegality in dismissing the revision petition.

7.         So far the contentions of the learned counsel for the petitioners that the trial Court without framing of issues and recording of evidence of parties has dismissed the application under section 12(2), C.P.C. is concerned, we are of the view that it was not necessary for the trial Court to frame issues and to record pro and contra evidence of the parties, when there was no element of alleged fraud and misrepresentation available on record. This view was taken by the Hon'ble Supreme Court of Pakistan in the following reported cases:

(1)        Nazir Ahmed v. Muhammad Sharif (2001 SCMR 46).

(2)        Mst. Nasira Khatoon v. Mst. Aisha Bai (2003 SCMR 1050).

            The case-law relied upon by the learned counsel for the petitioners is not applicable in the circumstances of the case. We have not been able to find out any material illegality or any jurisdictional defect, warranting interference in the impugned orders, passed by the Courts below.

8.         For the above reasons, the petition is dismissed.

MH/67/Bal                                                                                           Petition dismissed.


Comments

Post a Comment

Popular posts from this blog

P L D 2016 Supreme Court 358

P L D 2016 Supreme Court 358 Present: Mian Saqib Nisar, Iqbal Hameedur Rehman and Tariq Parvez, JJ Sahabzadi MAHARUNISA and another---Appellants/Petitioners Versus Mst. GHULAM SUGHRAN and another---Respondents Civil Appeals Nos. 1176 and 1177 of 2015, and Civil Petition No.1428-L of 2015.           (Against the order dated 11-6-2015 of the Lahore High Court, Bahawalpur Bench passed in C.M. Nos. 385, 388/2009 and 2051 of 2015) (a) Words and phrases --- ----"Merge" and "merger"---Definitions.             Chambers English Dictionary 7th Edn.; Oxford English Dictionary (1933); Corpus Juris Secoundum (1936) and The Constitution of India by Prof. S.R.Bhansali ref. (b) Civil Procedure Code (V of 1908) --- ----S.12(2)---Application under S.12(2), C.P.C, filing of---Forum---"Court which passed the final judgment, decree or order"---Principles---For all legal purposes, it was the final decree/order of the last Court in ...
Read more

P L D 2009 Lahore 362

P L D 2009 Lahore 362 Before Asif Saeed Khan Khosa, Tariq Shamim and M.A. Zafar, JJ GHULAM MURTAZA and another---Appellants Versus THE STATE---Respondent Criminal Appeal No.284-J of 2008, decided on 27th March, 2009. (a) Administration of justice--- ----Principles---Quintessence of the Civilization's evolution and growth in the legal field is a progression from dispensation of justice according to the principle of "justice, equity and good conscience" to "justice according to law"---Rationale or raison d'etre for this momentum, quite easy to discern and comprehend, is that justice ought not to be administered according to whims, caprice or subjective standards of an individual judge but it should be dispensed according to some codified or stipulated standards so as to render the outcome consistent and reasonably predictable---Predictability of judicial response to an action or inaction of a person is important because, by and large, people livi...
Read more

2010 SCMR 1181, Supreme Court Allowed Superdari

2010 SCMR 1181 [Supreme Court of Pakistan] Present: Nasir-ul-Mulk, Raja Fayyaz Ahmad and Jawwad S. Khawaja, JJ ALLAH DITTA----Petitioner Versus THE STATE----Respondent Criminal Petition No.461 of 2009, decided on 12th February, 2010. (On appeal from the judgment of Lahore High Court Lahore dated 3-6-2009 passed in Criminal Appeal No.674 of 2009). (a) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 74, Proviso---`Any private individual'---Meaning and scope ---Phrase "any private individual" is to be read ejusdem generis with the preceding specific words, "accused, or his associate or relative' ---By application of the rule the "private individual" mentioned in the proviso refers to such an `individual who has some nexus with the offender or the offence-I-Innocent owner of the vehicle used in the commission of the crime having no nexus whatsoever, either with the accused or the crime, would not fall within the scope of the ph...
Read more