IN THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-4357
of 2013
(Noor
Mohammad Vs. Mohammad Iqbal and others)
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present:
Mr. Justice Irfan Saadat Khan
Mr. Justice Abdul Maalik Gaddi
31.03.2014
Mr. Mohammad Javed Tanoli Advocate for
the Petitioner.
-.-.-.-.-.
Abdul Maalik Gaddi,J.- Through this Constitutional Petition,
the Petitioner has prayed for the following relief(s):-
PRAYER
It
is therefore respectfully prayed that this Hon’ble court may be pleased to pass
the Order as under:-
i)
To set aside the Impugned Order dated 19-5-2012 passed
by VII Addl. District & Sessions Judge (South) Karachi and declare that
same is illegal, unlawful and not sustainable under the law.
ii)
To set aside the Order dated 13-12-2011 passed by
Learned X Senior Civil Judge, South Karachi on application U/S 12(2) CPC filed
by petitioner by declaring the same as illegal, unlawful and perverse.
iii)
To set aside the Judgment and Decree dated 26-5-2011
by declaring the same nullity in the eyes of law as the same have been obtained
fraudulently and by misrepresentation of facts.
iv)
The cost of the suit may also be awarded to
petitioner.
v)
Any other relief or relives which this Hon’ble Court
may deem fit and proper.
2. Relevant facts for the disposal of this
Petition are that Respondent No. 1 filed Civil Suit bearing No. 93/2009 for
Declaration, Possession, Cancellation of Lease Documents, Mesne Profit and Permanent
Injunction against the Petitioner and Respondents Nos. 2 to 4. The said Suit
was contested by the present Petitioner and subsequently that Suit was decreed
by the learned X-Senior Civil Judge, Karachi South vide her Judgment and decree
dated 26.05.2011 and 03.06.2011 respectively. It appears from the record that
against the said judgment and decree, the present Petitioner or the Respondents
No. 2 to 4 have not preferred any Appeal to the Appellate Court instead of
this, the present Petitioner has filed an application under Section 12(2) CPC,
which was dismissed by the learned X-Senior Civil Judge, Karachi South vide
order dated 13.12.2011. Being aggrieved and dissatisfied with the said order,
the present Petitioner filed Revision Application before District Judge,
Karachi South, from where it was transferred to the learned VII-Additional District
Judge, Karachi South, who after hearing the parties, dismissed the said
Revision Application vide her order dated 19.05.2012, which is impugned through
this petition.
3. We have heard the learned counsel for
the Petitioner at a considerable length and have perused the record available
before us.
4. Learned counsel for the Petitioner has
argued that the impugned orders dated 13.12.2011 and 19.05.2012 are bad in law as
the two Courts below while deciding the application u/s 12(2) CPC have ignored
the material facts placed on record. He further argued that learned two Courts
below have committed material irregularity and illegality while not
appreciating the pleadings in order to ascertain the exact nature of the fraud
which was committed by the Respondent No.1 while keeping the Petitioner out of
proceedings and in procuring the judgment and decree in fraudulent manner. He further argued that suit filed by the
Respondent No.1 was not maintainable but the learned Trial Court while
decreeing the suit of the Respondent No.1 has ignored all these facts,
therefore, the learned counsel for the Petitioner while relying upon the facts
and grounds agitated in this Petition has prayed for allowing this Petition.
5. We have carefully considered the
submissions of learned counsel for the Petitioner and perused the record. From
perusal of the record, it appears that present Petitioner was the Defendant No.1
in Civil Suit N. 93 of 2009 filed by the Respondent No.1. It also appears that
present Petitioner has contested the said Suit and said Suit was decreed on
merits but the present Petitioner has not preferred any appeal against said
judgment and decree as such in our view the same has attained finality. It is
also pertinent to mention here that when execution application was filed by the
Respondent No.1, the present Petitioner filed application under Section 12(2)
CPC only in order to defeat the judgment and decree already passed in favour of
Respondent No.1.
6. Admittedly the suit filed by Respondent
No.1 was decreed in his favour and the present Petitioner though was the
Defendant No.1 in the said suit contested the same, but he instead of assailing
the judgment and decree in appeal, filed an application under section 12(2)
CPC, which was dismissed. In our view present Petitioner sealed his own fate by
not challenging the judgment and decree as such it has attained finality.
7. As regards the contention of the
learned counsel for the Petitioner that fraud has been committed while passing
the judgment and decree with him. This argument has no merit as in our view
application under section 12(2) CPC or u/s 151 CPC was not substitute to
regular appeal or revision or review, nor such provisions could be construed as
something over and above the normal modes of questioning a decree by way of
appeal, revision or review. We also observe that now-a-days it is unfortunate
that some litigants attempt to frustrate the decree/ its execution by resorting
to provisions of Sections 12(2) and 151 CPC unnecessarily as happened in this
case.
8. We have gone through the case law
reported in United Bank Limited vs.
M/s. The Hinna Export Co. (Pvt) Limited Office Karachi (1998 PSC 78).
In this Authority, it has been held as under:-
“We are inclined to hold that since the judgment and decree in the
above case was passed on 11.12.1994 and as no appeal was filed by the
respondents against the above judgment/decree and the application filed by the
respondents under section 12(2) CPC cannot be treated as an appeal.”
9. We have also gone through the case law
reported as Muhammad Ibrahim and
another vs. Group Captain Salehuddin and others (1987 SCMR 218), the
said case law is almost on same analogy, wherein it has been held as under:-
“Party having right of appeal failing to exhaust that remedy could not
seek his remedy by way of revision.”
10. In view of the above cited case law,
which is a complete answer of the grounds agitated by the Petitioner in this
Petition. In this matter, the present Petitioner being Defendant No.1 filed his
written statement and contested the proceedings and subsequently the judgment
and decree was passed against him therefore, in view of the above factual and
legal aspect of the case, this Petition appears to be not maintainable.
11. Upshot of the above discussion is that the
two Courts below have acted in accordance with law and have properly
appreciated the facts of the case and no illegality or material irregularity
was committed by them, therefore, we find no merits in this Constitutional
Petition, which is accordingly dismissed
in limine with no order as to costs.
These are the reasons for the short
order announced by us today on 31.03.2014.
JUDGE
JUDGE