IN THE HIGH COURT OF SINDH AT KARACHI

C.P.NO.1567/2013

Present :-

Mr. Justice Aqeel Ahmed Abbassi,

Mr. Justice Muhammad Junaid Ghaffar

Malik Abdul Malik---------------------------------------------Petitioner

Versus

Khan Afsar & others-------------------------------------------Respondents

Date of hearing 20-01-2015

Date of order 20-01-2015

Petitioner Through Mr. Mohammad Akbar, Advocate.

Respondent Through Mr.Azizur Rehman, Advocate.

J U D G M E N T

MUHAMMAD JUNAID GHAFFAR, J:- Through instant petition, the petitioner has impugned the order dated 05.04.2013 passed by the learned IIIrd Additional District Judge, Karachi (East), whereby, Civil Revision preferred against the order dated 13.02.2013 passed by the IInd Senior Civil Judge, Karachi (East) in Execution No.04/2010 arising out of Civil Suit No.266/2009, through which an application filed by the petitioner under Order IX Rule IX CPC was dismissed.

2. Briefly, facts of the case as stated are that the respondent No.1 had filed a Civil Suit bearing No.266/2009 in the Court of IInd Senior Civil Judge, Karachi (East) against the petitioner and one Ghulam Hussain son of Jan Muhammad for recovery of Rs.700,000/- alongwith damages of Rs.300,000/-, which was decreed in favour of respondent No.1 exparte vide judgment dated 28.10.2009. Thereafter, the petitioner filed an application under Section 12(2) CPC read with Order 9 Rule 13 CPC, on which, petitioner was directed to furnish surety which security equivalent to the decretal amount, which amount could not furnish, therefore, the said application was dismissed, against which, petitioner as well as Ghulam Hussain, the defendant No.2 in the suit, filed Revision application before the learned Additional District Judge, Karachi (East), which was also dismissed vide order dated 30^th November, 2011. The petitioner as well as Ghulam Hussain, the defendant No.2, thereafter filed a petition bearing C.P.No.D-224/2012, against the order of Revision dated 30.11.2011 before this Court, which was dismissed vide order dated 19.09.2012, whereby, the relief sought by the defendant No.2 in the suit was granted and the judgment and decree to the extent of defendant No.2 was set aside, by allowing an application under Section 12(2) CPC read with Order IX Rule 13 CPC on furnishing solvent surety in the sum of decretal amount, whereas, so far as the relief sought by the petitioner in the aforesaid petition was regretted. Thereafter petitioner filed an application before the learned IInd Senior Civil Judge, Karachi (East) Under Order IX Rule IX CPC alongwith an application under Section-V of the Limitation Act praying therein to recall the order dated 12.12.2009, whereby, an earlier application filed under Order 9 Rule 13 CPC read with Section 151 CPC and an application under Section 12(2) CPC were dismissed for non-prosecution. The said applications were dismissed vide order dated 13.02.2013, against which Civil Revision No.18/2013 was preferred by the petitioner, which has also been dismissed through the impugned order.

3. Learned Counsel for the petitioner has contended that the co-defendant in the suit have been allowed relief by this Court vide order dated 19.09.2012, whereas, the petitioner, who was also defendant No.2 in the said petition did not allow such relief and therefore consequently petitioner had moved an application U/O 9 Rule IX CPC which was considered by the trial Court as well as by learned Additional District Judge, Karachi (East), who has also dismissed the Review application.

4. Learned Counsel for the petitioner was confronted as to how the application under Order 9 Rule 9 CPC was preferred and maintainable before the trial Court, as the same relief, which were sought by the petitioner in C.P.No.D-224/2012 was regretted vide order dated 19.09.2012 and against which, no further appeal was preferred before Hon’ble Supreme Court. Learned Counsel could not confronted such position and candidly stated that the petitioner in the instant petition is only seeking relief, which has already been granted to another co-defendant in the Suit, whereby, judgment and decree to this extent be set aside.

5. On perusal of the record, it appears that the case of the petitioner was not at par with the co-defendant in the suit, whereas, the conduct of the petitioner, after passing of the exparte judgment and decree is also not appreciable. The petitioner, after passing of the judgment and decree had challenged the same by filing an application under Section 12(2) CPC read with Order 9 Rule 9 CPC, to which, learned trial Court had directed the petitioner to furnish surety/security equivalent to the decretal amount, which the petitioner failed to furnish and consequently, the said application under Section 12(2) read with Order 9 Rule 13 CPC was dismissed.

6. Whereas, defendant No.2 have challenged the dismissal of his application under Section 12(2) CPC read with Order 9 Rule 13 CPC by filing a Revision application within time before the learned Additional District Judge, Karachi (East), which was also dismissed and thereafter co-defendant in the suit preferred a petition before this Court bearing C.P.No.D-224/2012, in which the present petitioner also joined him as petitioner No.2 and sought the same relief, which was being claimed by the petitioner No.1 in that petition. However, it is pertinent to observe that the case of the petitioner No.2 with the case of present petitioner was on different footings, as petitioner No.1 (co-defendant) in the suit had come to this Hon’ble Court after exhausting remedy of the Revision before the learned Additional District Judge, Karachi (East) after dismissal of his application under Section 12(2) CPC read with Order 9 Rule 13 CPC by the trial Court. This Court after examining the case of the present petitioner, while disposing off the petition bearing C.P.No.D-224/2012 filed by the co-defendant and the present petition vide order dated 19.09.2012 had examined the case of the petitioner and came to the following conclusion:-

19-09-2012

“ It is contended by the learned Counsel for the petitioner No.1 Ghulam Husain that he learnt about the ex-parte judgment and decre and the notices were served in the execution proceedings and had immediately rushed the Court and filed the application referred to above which aspect was not examined by the learned trial Court and so also the revisional Court. In the application, it was stated that he learnt about the ex-parte judgment and decree and obtained copies on 29.05.2010 and filed the application on 02.6.2010 i.e. within two days after obtaining the copy, mentioning the facts of the judgment and decree. It seems that due consideration was not given by the learned Courts below. Accordingly, to the extent of petitioner No.1 the judgment and decree is set aside and the application under section 12(2) CPC read with Order IX Rule 13 CPC stands granted, however, subject to furnishing solvent surety in the sum of decretal amount as already ordered by the learned trial Court on 02.6.2010. Such security shall be furnished within seven working days.

Now adverting to the case of petitioner No.2 Malik Abdul Malik. The application filed by Malik Abdul Malik dated 21.11.2009 seeking setting aside the judgment and decree passed against him on 28.11.2009. The application was filed on 21.11.2009, notice was ordered for 24.11.2009 and again it was adjourned to 12.12.2009. It seems that none appeared on behalf of the said defendant namely Malik Abdul Malik, consequently it was dismissed for non-prosecution and in default for the payment of cost as ordered on 12.12.2009. No exception was taken by Malik Abdul Malik the defendant No.2 against the order passed by the learned trial Court. Neither he made any application before the learned trial Court nor filed any revision against the impugned order where the party fail to avail a remedy against impugned order in a normal course, and the writ is not entertained as a substitute and alternate remedy. We do not find any merit in the case of petitioner No.2. Accordingly, the petition is dismissed to the extent of said petitioner No.2. The learned trial Court may continue to execute the judgment and decree against the petitioner No.2 Malik Abdul Malik in accordance with law. In case the petitioner No.1 fails to furnish security equivalent to the decretal amount as ordered by the learned trial Court, the judgment and decree will stand revived and the petition would be considered as dismissed”.

7. From the perusal of above order, it transpired that relief, which is being now sought by the petitioner has already been declined to the petitioner by this Court and by admitting the position that the petitioner had not challenged the order dated 19.09.2012 as aforesaid before the Hon’ble Supreme Court, which has now attained finality, and the conduct of the petitioner by filing an application under Order IX Rule IX CPC and thereafter Civil Revision against the dismissal is not appropriate and are not permissible under the law.

8. In view of hereinabove facts and circumstances of the instant case, we are of the view that the petitioner is not entitled to seek any relief in the instant petition, as the such relief has already been declined by this Court vide order dated 19.09.2012 as aforesaid. Consequently, we had dismissed the instant petition, vide short order dated 20.01.2015 and the above are reasons for short order.

JUDGE

Talib