1998CLC649 (PLP)

Fazal‑e‑Miran Chauhan and Tariq Bilal for Respondents. Date of hearing: 16th July, 1997. This order shall dispose of Civil Revision No.296 of 1988, directed against the order, dated 17‑7‑1988, passed by the learned Additional District Judge, Rawalpindi, whereby the appeal of Muhammad Shafi petitioner was dismissed and order of learned trial Court, dated 30‑7‑1987 was affirmed.

2. A suit for declaration was filed by Mst. Nazir Begum respondent No. l herein to the effect that the general power of attorney No.978, dated 7‑10‑1981; purporting to have been executed by late Mst. Asst mother of Mst. Nazi; Begum (plaintiff in the suit) was a forged document and as such ineffective as against the right of the successor of the Mst. Asst and same be ordered to be delivered up, As consequently relief a decree for injunction restraining, Muhammad Ismail (defendant in the suit) from exercising any power on the basis of the said document was claimed. The suit was decreed an ex parte on 7‑12‑1983.

3. Muhammad Shafi son of Abdullah, petitioner herein (now represented as his heir) filed an application for setting aside the ex parte decree, dated 7‑12‑1983 wherein he claimed himself to be an heir of Mst. Asst. It was stated that no power of attorney was executed by Mst. Asst in favour of Muhammad Ismail but still the decree was challenged notwithstanding the fact that the decree was by itself to the effect that the power of attorney claimed by Muhammad Ismail was nullity in the eye of law. The application was filed on 10‑4‑1984. An application under section 5 of the Limitation Act was also fled by seeking condonation of delay. From filing of the contents under section 5 of Limitation Act, it appears that the main application was purportedly filed under Order IX, Rule 13 of C.P.C., though no section was mentioned in the title thereof. Reason being that if the application was under section 12(2), C‑P C. there would have been no need to apply under section 5 of the Limitation Act, as the decree having been passed on 7‑12‑1983, the application being filed on 10‑4‑1986 could not he said at barred by time.

4. The application of Muhammad Shafi was dismissed by learned Civil ledge vide order, dated 30‑7‑1987. The appeal filed theiragainst was also dismissed by the learned Additional District Judge. Rawalpindi on 17‑7‑1988. In this revision petition, two orders of the learned Courts below have been assailed.

5. Learned counsel for the petitioner has not entered appearance instead a written request has been made, which was strongly opposed by the learned counsel for the respondent. Record reveals, that the respondent has been grumbling for the delay in the case and for early hearing of the case an application has been filed. From the order sheet, it is observed that the revision is pending since 1988. Vide order, dated 28‑3‑1996 passed in Civil Miscellaneous 492‑C of 1996, seeking, vacation of the stay order, it was not directed that the civil revision shall be fixed for 23‑4‑1996. On 26‑5‑1997, the case was adjourned, as the learned counsel for the petitioner sought time to prepare his brief as to whether the revision was maintainable. Order, dated 13‑11‑1996 also reveals, that the case was adjourned at the request of the learned counsel for petitioner, which adjournment was opposed but was allowed in the interest of justice. In order, dated 4‑12‑1996, it was observed that the case could not proceed as the learned counsel for petitioner was on general adjournment. It was directed that the matter being old one it should be fixed in the last week of February, 1997'. Order, dated 6‑5‑1997 reveals that a request for adjournment was made on behalf of the learned counsel for the petitioner, as he was stated to be busy in the Session of National Assembly. Serious objection was taken by the learned counsel for respondent as the matter was pending for last about eight years. The learned counsel appearing on behalf of the counsel for the petitioner, undertook that if the matter would be fixed after 29‑5‑1997, no further adjournment would be sought again. In this view of the matter, last opportunity was given by the Court and case was ordered to be fixed for 23‑6‑1997. In order, dated 26‑6‑1997, it was observed that the hearing of the petition was not concluded on account of the fact that unnecessary adjournment were being sought. The office was therefore, directed to fix the case on date in third week of July, 1997, with the observation that the petitioner and his counsel both shall appear before the Court on that date to be fixed by the Office and to argue the case without further delay. In this background, I decline the adjournment and proceeded here with the case.

6. Arguments of the learned counsel for respondent has been heard. Record perused.

7. The petitioner. Muhammad Shaft, who is now represented by legal heirs, filed an application for setting aside the decree, dated 7‑12‑1983 on the ground that he was one of the heirs of Mst. Asst. The two Courts below dismissed the application. In the first instance, the learned trial Court found the application to be barred by time and did not see any justification for condonation of delay. It was also observed that the petitioner was not a necessary party and in his absence, a valid decree could be passed. The learned trial Court also noticed that an order, dated 14‑12‑1985 Exh. P/1 was passed by the learned Civil Judge in a suit titled "Muhammad Shafi v. Hussain Khan whereby the suet for declaration to the effect that he was son of late Mst. Asst was unconditional withdrawn and accordingly dismissed by the Court. It was thus, observed that the petition was wholly misconceived and untanable. The learned Additional District Judge in appeal, after reappraisal of the whole controversy found that no 'decree having been passed against Muhammad Shafi, his application for setting aside of the decree was not competent. It is also observed that the petitioner did not have any right to challenge ex parte decree, unless he has established himself as heir of Mst. Assi (deceased).

8. After review of the order passed by the learned Courts below and the material on record, it is observed that no illegality has been committed by two learned Courts below nor their findings suffer from any jurisdictional error. The learned Courts below rightly observed that the decree under challenged did not affect the petitioner nor he could himself to be aggrieved therefrom, Even otherwise, the application appears to be a misdirected effort, inasmuch as, the petitioner himself takes up similar position as accepted in the decree. The petitioner Muhammad Shafi in his own application for setting aside of the decree, openly declared that Mst. Assi had never executed any power of attorney in favour of Muhammad Ismail. This being so, is he left with no grievance to question of validity of the decree, which did nothing accept declaring that the power of attorney claimed by Muhammad Ismail form Mst. Assi was illegal, ineffective and nullity in law. Mst. Nazir Begum filed the suit for the same purpose alleging that Mst. Assi had never executed any power of attorney favouring of Muhammad Ismail. This suit was decreed. Obviously, the petitioner taking same stand, could not have any locus standi or reason to file the application for setting aside of the decree. The application wag, therefore, absolutely mala fide, unwarranted and untenable.

9. It appears that the petitioner was under erroneous impression as if the ex parte decree determined the legal heir of Mst. Assi. The review of that decree would show that only power of attorney was questioned on the ground of having not been executed by Mst. Assi and no further relief for distribution of property of the late Mst. Assi among the legal heir was either claimed or granted. Even during hearing of the revision of learned counsel for the respondent frankly conceded that the decree under reference does not conclusively, determining the question relating to the heirs of late Mst. Assi and if such issue is raised in subsequent suit for division of the property of Mst. Assi among the legal heir, the issue will be decided by the Court in the said suit and own pits merits and the present decree will debar the decision of heirs interest on merits nor the petitioner will be debarred from proving his plea of being alleged son of Mst. Assi. In view of this, the apprehension in mind of the petitioner, if any, will be uncalled for. For the reason above, there is no merit in this civil revision, which is accordingly dismissed. No order as to cost. A.A./M‑434/L Revision dismissed.