ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Civil Revision Application No. S- 21 of 2014

[Madadullah  v.Nisar Ahmed]

Date                            Order with signature of Hon’ble Judge

1. For orders on office objections as flag A.

2. For orders on maintainability.             

Date of hearing:       23.01.2023.

Date of  order  :         02.02.2023.

Mr. Sarfraz Ali Abbasi, Advocate for the Applicant.

Mr. Makhdoom Syed Tahir Abbas Shah, Advocate for the Respondents.

ORDER

Adnan Iqbal Chaudhry J.-This revision has been brought against order dated 07.12.2013 dismissing the Applicant’s (Attaullah’s) application under section 12(2) CPC for setting-aside the judgment/decree dated 04.09.1999 passed in Civil Appeal No. 15/1999.

2.         The background is that Nisar Ahmed (Respondent No.1/Plaintiff) filed Suit No.16/1998 against Madadullah for possession of City Survey No.19/221, Hathi Dar Road, Shikarpur (suit property), and for damages in that regard. Madadullah filed an application for rejecting the plaint. Same was dismissed. Thereafter, he did not file written statement. The suit proceeded exparte. After recording Nisar Ahmed’s evidence, the suit was decreed vide judgment/decree dated 03.5.1999 passed by the 1^st Civil Judge, Shikarpur. Madadullah filed Civil Appeal No.15/1999, however, same was dismissed by the Additional District Judge, Shikarpur vide judgment/decree dated 04.9.1999.

3.         Application under section 12(2) CPC was filed by the Applicant Attaullah in the year 2011 for setting aside the judgment/decree dated 04.9.1999 passed in Civil Appeal No.15/1999.Attaullah claimed to be the legal heir of Madadullah in his capacity as the son of Rizqullah who was the brother of Madadullah. His case was that Madadullah was in possession of the suit property on behalf of Rizqullah, who was the tenant thereof, and who had shifted to Karachi leaving Madadullah in possession; that before the subject suit was filed, Madadullah had already passed away on 07.8.1998; that the application for rejection of plaint in said suit, and thereafter Civil Appeal No.15/1999 had not been filed by Madadullah, but had been managed/manipulated by Nisar Ahmed; that the suit against a dead person was fraudulent. The learned Additional District Judge found the allegations to be unconvincing, more so when the application under section 12(2) CPC had been filed after 12 years, and therefore, he dismissed the same by order impugned.

4.         Heard learned counsel and perused the record with their assistance. 

5.         In support of their respective submissions, both learned counsel had also relied upon copies of other proceedings filed by them in this revision to rebut each other’s contention. From those proceedings it appears that earlier on, Suit No. 02/1990 was filed by Rizqullah (Madadullah’s brother) for specific performance of a sale agreement dated 10-06-1971, alleging that the original owners had agreed to sell the suit property to him, and with that he prayed for an injunction to restrain Nisar Ahmed from disturbing his possession. Per Nisar Ahmed, the original owners had sold/conveyed the suit property to him by a registered sale deed dated 10-04-1975; that in 1978 he had let the ground floor to Rizqullah, but the latter then tried to claim ownership. Suit No. 02/1990 was dismissed by judgment/decree dated 27-04-1998, and it was alleged by Nisar Ahmed that Rizqullah then put up his brother, Madadullah, to occupy the suit property by force, hence Suit No. 16/1998 against Madadullah.

6.         Against the dismissal of Suit No. 02/1990, Attaullah filed Civil Revision No. 09/2004 before the Additional District Judge which was dismissed. Against that, he filed C.P. No. S-265/2009 before this Court which too was dismissed by order dated 19-05-2009, so also CPLA No. 810-K of 2009 by the Supreme Court by order dated 02-04-2010. It was thereafter that Attaullah filed the subject application under section 12(2) CPC.

7.         Be that as it may, the ground taken by Attaullah in his application under section 12(2) CPC was that the subject suit had been filed fraudulently against a dead person, Madadullah, who had passed away on 07.8.1998.However, the death certificate relied upon by him is hardly inspiring as it was issued on 24.01.2011, i.e. a few months prior to the application under section 12(2) CPC. Coupled with that, the allegation that Nisar Ahmed had schemed to set-up an application for rejection of plaint against himself, and then an appeal against the decree awarded to him, is preposterous. Learned counsel for the Applicant had no answer to the query as to what title or interest did Madadullah have in the suit property.

8.         Further, it was pleaded by Attaullah in para No.11 of his application that he came to know of the judgment/decree passed in the subject suit on 26.11.2005, when the same were disclosed by Nisar Ahmed in Civil Revision No. 09/2004. Computing the 3-year limitation under Article 181 of the Limitation Act, 1908 from that date of knowledge, the application under section 12(2) CPC filed in the year 2011 was hopelessly time barred. For that, reliance can be placed on Bashir Ahmed v. Muhammad Hussain (PLD 2019 SC 504).

9.         For the foregoing reasons, there is no cause for interfering in the impugned order. The revision application is dismissed.

JUDGE

shabir