IN THE HIGH COURT OF SINDH
AT LARKANA
CP S-858 of 2019 : Mst. Hazoor Khatoon &Anothervs.
Nusrat Hussain Soomro & Others
For the Petitioners : Mr. Ghulam Dastagir A. Shahani, Advocate
For the Respondents : Mr. Abdul Rahman A. Bhutto, Advocate.
Mr. Liaquat Ali Shar, Additional Advocate
General Sindh.
Date of hearing : 17.02.2022
Date of order : 17.02.2022
ORDER
Agha Faisal, J. Briefly stated, the learned trial court had rendered a Judgment dated 26.02.1989 and a Decree was prepared there against on 15.03.1989. The petitioners, claiming inherited entitlement through their father, who is said to have passed away in 1991, preferred applications under section 12(2) C.P.C. on 28.03.2014 before the learned trial court, after 25 years of the Judgment and Decree. The said application/s were dismissed and the revision there against met the same fate, hence, the present petition.
2. It is considered illustrative to reproduce the pertinent observations of the learned Trial Court as follows:
“After hearing learned counsel for both parties, DDA for official opponents and perusal of record, it appears that judgment was passed by this court on 26.02.1989 and decree was prepared on 15.03,1989 and both these applications have been filed on 28.03.2014 after about 25 years of the judgment and decree without giving any cogent and plausible explanation for such long delay. It is well settled law that delay of each and every day is to be explained which the applicants/interveners failed to explain.
So far, application u/s 12 (2) CPC is concerned, it is stated by the applicants/interveners Mst Hazoor Khatoon in her affidavit that, plaintiff / D. H filed suit against their father who died during proceedings but they were not joined as party though they are legal heirs of their late father Qamaruddin and the property admittedly in their possession, but the plea/ground taken by the applicants/interveners seems to be incorrect and afterthought, for the reasons that, their father Qamarudidn did not expire during proceedings of the case. The copy of judgment and decree available with file shows that judgment in F.C Suit No.21/1993 Re-Nusrat Hussain V.S Mukhtiarkar Ratodero and others was pronounced on 26.02.1989 and decree was prepared on 15.03.1989 while father of applicants/interveners expired in the year 1991 after we have about two years of the judgment. The applicants/interveners have concealed the date of death of their late father in their application as well as affidavit but the application filed by brothers and mother of applicants/interveners u/s 12 (2) CPC in the suit clearly shows that their father died in the year 1991 which means that plea of applicants/interveners that their father died during proceedings is incorrect and actually the judgment and decree was passed in life time of their father, therefore, in presence of real person itself it was not necessary to made the applicants/interveners as party in the suit being legal heirs. The perusal of file further shows that, prior to this application the brothers and mother of applicants/interveners also filed application u/s 12 (2) CPC which was dismissed by this court as well as by the Honourable appellate court and also by the Honourable High Court of Sindh Circuit Court, Larkana.
The applicants/interveners Mst Hazoor Khatoon has further stated in her affidavit that they were not knowledge of judgment and decree and they came to know about two weeks back when they started construction work of Northern portion of property when two persons came and forcibly stopped the work but this plea is also not believable. For the reasons that, admittedly the applicants/interveners residing in the same premises with their other family members, their father late contested the suit and thereafter their mother and brothers also filed application u/s 12 (2) CPC then how it can be believed that they were not knowledge in judgment and decree. The applicants/interveners have filed this applications after about 25 years of the judgment and decree while limitation for filing of application u/s 12 (2) CPC is three years.
The citations relied upon by learned counsel for applicants/interveners are distinguishable from the facts and circumstances of the present case for the reasons that in 1994 SCMR 782, the property of provincial was decree in favor of party on the basis of compromise application between private party, therefore, it is held in the above circumstances that the property vested in the provincial government which could not be validly sold by a fake person in favor of Khalil Ahmed. The agreement itself being forged and unlawful could not be enforced not a valid decree in respect thereto passed, and in such circumstances it was held that decree passed without impleading the transferees as defendants in the suit being void no period of limitation would run against them. In 1981 SCMR 878, the respondents after disposal of a C.P filed a civil suit, therefore, in such circumstances, it is held by Honourable Supreme Court of Pakistan thatafter the aforesaid adjudication by this court, afresh suit to re-agitate the same matter could not have been filed by respondents. It is further held that where a person challenged validity of judgment, decree or order on the plea of fraud mis-representation or want of jurisdiction, he shall seek his remedy by making an application under section 12(2) CPC to the court which passed the final judgment, decree or order and not by a separate suit. The remaining two citations relied upon by learned counsel are also on same points and does not attract to the facts and circumstances of the present case.
In view of my above discussion, I am of the humble view that both these applications merits no considerations, therefore, applications of applicants/interveners of 5 of Limitation Act alongwith all connected applications u/s 12(2) CPC stands dismissed, with no order as to costs.”
3. The learned Revisionary Court has observed as under:
“I have heard the parties and have gone through the case files as well as R&Ps of this case. Perusal of file shows that applicants Mst. Hazoor Khatoon and Mst. Manzoor Khatoon had moved application on 15.11.2000 Under Order 21 Rule 26 CPC in execution application No.01 of 1994 in Civil Suit No.21 of 1983 wherein they had prayed for staying/suspending the proceedings of same execution application on the ground that they had filed application Under Section 12(2) CPC before the same court for setting aside judgment and decree passed in Civil Suit No.21 of 1983. Perusal of case file further shows that the application Under Section 12(2) CPC moved by both the above named applicants and other judgment debtors was dismissed as withdrawn on 07.05.2001. Hence it is evident from the record that both the applicants had previously moved application under section 12(2) CPC on 15.11.2000 before the learned trial court for setting aside the same judgment and decree which is subject matter of instant civil revision application but after lapse of about 13 years both the applicants again moved application under section 12(2) CPC before the learned trial court for setting aside the same judgment and decree dated 26.02.1989 and decree dated 15.03.1989.
Under these circumstances it is very much clear that both the applicants were in the knowledge about the subject decree on 15.11.2000 when they had firstly filed application under section 12(2) CPC before the learned trial court but such fact has not been disclosed by both the applicants in their second application filed under section 12(2) CPC. Such act of the applicants shows that they have not come with clean hands. Apart from this due to above mentioned facts the second application filed under section 12(2) CPC is badly time barred which has rightly been dismissed by the learned trial court therefore impugned order is hereby maintained and Civil Revision is hereby dismissed with no order as to costs.”
4. The petitioners’ learned counsel submits that the Courts below had not appreciated the contentions of the petitioners in its true perspective and had passed the respective orders in a perfunctory manner. On theother hand learned Additional Advocate General and the learned counsel for the respondents support the impugned orders.
5. Heard and perused. The application before the learned trial court was a generation belated and instituted by legal heirs of a person admittedly alive when the judgment and decree were rendered. The trial court records active concealment of material facts by the applicants as well as initiation of multifarious unmerited proceedings seeking agitation of the same lis. The contentions of the applicants appear to have been carefully catalogued and considered by the trial court and upon application of judicial mind found to be without merit. The learned revisionary court also appears to have appreciated the contradictions and inconsistency in the applicants' plea and upheld the impugned order. The original order as well as order in revision appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court.
6. Article 199 of the Constitution contemplates the discretionary[1] writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter admittedly there existed an adequate remedy, however, the same was duly availed / exhausted and no case has been set forth before us for invocation of the writ jurisdiction.
7. The ambit of constitutional petition is not that of yet another forum of appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order/s impugned. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. It is the considered view of this court that no manifest illegality has been identified in the orders impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
8. In view hereof, this court is constrained to observe that no case has been set forth for the invocation of the discretionary writ jurisdiction of this Court, hence, this petition, along with pending application, is hereby dismissed.
JUDGE
[1] Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.
[2]Per Faqir Muhammad Khokhar J. in NaheedNusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.