1999 PLP 922 (SCMR)

IRSHAD HASAN KHAN, J.

This petition for leave to appeal is directed against the judgment dated 30-6-1997 passed by Lahore High Court, Lahore in Civil Revision No. 1408 of 1986.

2. The brief facts are that the petitioners filed a suit for declaration with consequential relief contending therein that Fazal Din deceased was owner of the suit land. Ghulam Muhammad respondent No. l herein being son of Fazal Dir. also filed a suit against his father and obtained a consent decree on 4-4-1970 on the basis whereof Mutation No. 106 was sanctioned in his favour. The petitioners challenged the decree and mutation contending that they were also son and daughter of the deceased Fazal Din. Fazal Din being an old man, respondent No.2 got a decree without his free consent with a view to deprive the petitioners of their due share. The trial Court decreed the suit on 16-4-1985. Appeal against consent decree was allowed by the learned Additional District Judge, Sheikhupura on 28-5-1985. The petitioners assailed the aforesaid judgment and decree in revision before the High Court which was dismissed on merits as well, as on the ground of having been filed after expiry of 90 days without reasonable excuse or ground.

3. Learned counsel for the petitioners vehemently argued that Ghulam Muhammad was a defendant/appellant who had filed an affidavit before the learned Additional District Judge to the effect that he was not interested in the appeal and the same be dismissed. The Lower Appellate Court failed to consider this aspect of he case, which has resulted in grave prejudice to the petitioners. It is further argued that the effect of Order XXIII, Rule 1(4), C.P.C. has been lost sight of by the learned Judge in Chambers. It was further argued that Karamat Ali respondent No.2 herein was not an aggrieved person, therefore, he was not competent to file an appeal against the decree of the trial Court.

4. We had heard the learned counsel for the petitioners at some length and perused the impugned judgment/material available on record.

5. It appears that the argument first of all mentioned was not pressed at the time of hearing of the revision petition before the learned Judge in Chambers of the Lahore High Court, Lahore. It is correct that the petitioners have taken such a plea in their memorandum of petition here but in the absence of any averment that the argument was raised before the learned Judge in Chambers and not considered by him clearly goes against the petitioners.

6. As to the other points raised, suffice it to say that the learned Judge in Chambers after thorough scrutiny of the material on record recorded a finding, that the learned Lower Appellate Court was justified in holding that the transaction made in favour of Ghulam Muhammad was valid and binding on the heirs of Fazal Din. The learned Lower Appellate Court also, after appreciating the entire evidence, observed that there was no bar in the way of Fazal Din to sell his property and that no particulars of fraud were given and that the consent decree was admitted by the petitioners and that the plea of undue influence was falsified when Muhammad Sadiq P.W.1 stated that Ghulam Muhammad shifted to his Dera About 14 years ago. Even otherwise it was observed that there was no evidence of undue influence. Fazal Din remained alive for 11 years but did not challenge the transaction. The findings recorded by the Lower Appellate Court were in accord with the evidence on record and no misreading or non?-reading was shown to have been made by the Lower Appellate court in reaching the conclusion.

7. We are also of the view that the learned Lower Appellate Court after proper appraisal of evidence recorded the aforesaid findings, to which no exception was rightly taken by the learned Judge in Chambers in exercise of his revisional jurisdiction. Clearly, the order of the Lower Appellate Court did not suffer from any jurisdictional defect warranting any interference by the High Court. No exception can be taken to the impugned judgment in these proceedings on the plea raised by the petitioners. The revision petition, even otherwise, was not entertainable, in that, the petitioners failed to satisfy the High' Court why the revision petition was filed after 121 days without any explanation for the delay beyond 90 days. We may also observe that the petition is also barred by one day and no reasonably explanation has been tendered for condoning the same.

8. Resultantly, the petition fails and is hereby dismissed. Leave is refused. ?????????? H. B. T./A-118/S ??????????????????????????????????????????????????????? Petition dismissed.