1987 PLP 2042 (CLC)

‑‑‑S. 12(2)‑‑Constitution of Pakistan (1973), Art. 199‑‑Fraud‑ Petitioner alleging that she empowered her attorney to prosecute case only and not to conciliate matter or withdraw suit‑‑Petitioner alleged fraud in her petition but in her statement she did not make even a whisper of complaint that she had been dafrauded by withdrawal of suit‑‑Application of petitioner moved under S.12(2), Civil Procedure Code, held, was rightly dismissed by appellate Court below. Nazir Ahmad Bhatti for Petitioner. This Constitutional Petition seeks to set aside the judgment dated 17‑11‑1986 pronounced by Ch. Anwar Ali, District Judge, Bahawalnagar, who had dismissed the application of the petitioner moved under section 12(2), C.P.C.

2. The facts of the instant case, in brief are, that the petitioner sought the assistance of the learned trial Court for a declaration to the effect that they were the owners in possession of the disputed land as the heirs of Mst. Muhammad Bibi (deceased) and mutation No.231 attested in favour of the respondents was illegal, void and inoperative on their rights. Mst. Hamida Bibi petitioner and her own sister Mst.Rashida Bibi executed the power of attorney in favour of their maternal‑uncle Hakim Din s/o Karam Din for the prosecution of the said suit. Another litigation regarding the same property is alleged to have been pending before this Court. .Hakim Din withdrew the suit filed by Mst.Hamida Bibi, the petitioner and Mst. Rashida Bibi. It may be noted that Hakim Din was plaintiff No.3 in the said suit. The suit was withdrawn and Mst.Hamida Bibi instituted a petition under section 12(2), C . P. C . wherein she had stated that she had empowered Hakim Din for the prosecution of the case only and not to conciliate the matter or withdraw the suit. The learned trial Court agreed with the stand of the petitioner and accepted her petition. Ghulam Rasul and others lodged an appeal which was accepted on 17‑11‑1986, and the said judgment has been assailed in this Constitutional petition.

3. Mst.Rashida has stated that they had given power to their attorney to withdraw the suit, whereas Mst.Hamida Bibi has stated otherwise. The relevant portion of Mukhtar Nama is as follows: It shows that Mst.Hamida and Mst.Rashida Bibi were bound by each and every act of their special attorney. As other case was pending in the High Court, so Hakim Din withdrew the suit. Mst.Rashida Bibi stated that it was rightly withdrawn.

4. It may be noted that fraud has been alleged in her petition by Mst.Hamida Bibi but in her statement she did not make even al whisper of the complaint that she had been defrauded by the withdrawal of the suit. The learned First Appellate Court has rightly dismissed the petition of the petitioner. In the circumstances, I feel no merit in this writ petition and dismiss the same in limine. M.Y.H./H‑23/L Petition dismissed.