2005 PLP 1728 (SCMR)

HAMID ALI MIRZA, J.

These two civil petitions for leave to appeal are directed against the judgment of the same date in Writ Petitions Nos.6075 and 6076 of 2002 passed by learned Judge in Chambers of the Lahore High Court, Lahore, whereby both writ petitions were dismissed maintaining the order, dated 15-3-2001 of the trial Court and order, dated 14-2-2002 passed by the revisional Court on an application under section 12(2), C.P.C.

2. Facts of the case need not be reiterated as the same have been stated in the impugned orders as well as in the memo. of petitions.

3. Contentions of the learned counsel for the petitioners in both petitions are that the order with regard to withdrawal of the Suit No.207 of 1992 for declaration filed by the petitioners predecessor-in-interest consequently its dismissal and decree in Suit No.4 of 1991 obtained by the respondent in his suit were obtained by the respondents by committing fraud, therefore, the impugned order passed by the learned Judge in Chambers maintaining the orders of the Courts below cannot be sustained in law and further that the suit of the respondent was not maintainable on the basis of said agreement.

4. We do not find merit and substance in the said contentions. On the basis of agreement dated 16-2-1985 the respondent filed a suit on the ground that the amount of Rs.85,000 was not returned to him, therefore, he became the owner of the property in dispute be deemed to have been sold to him for the non-payment of the said amount. The said suit tiled by the respondent was contested by the petitioner/defendant Mst. Guli and after recording of evidence, the suit was decreed on 18-11-1993 which was not appealed against and decree attained its finality between the parties. The respondent/plaintiff got the conveyance deed executed in his favour through Officer of the Court on 28-5-1994. One Beara and others filed suit for pre-emption on 26-9-1994 against the respondent/plaintiff and others wherein petitioners were also impleaded A as party which suit was also contested up to High Court and in the High Court the suit was disposed of through withdrawal of R.S.A. by the original vendees. It was also not denied by the learned counsel for the petitioners that in the said suit for pre-emption wherein they were respondents /defendants no such plea of fraud was agitated in the written statements filed by them. It will be seen from the record that the petitioner's predecessor had contested the proceedings as such neither fraud nor misrepresentation could be said to have been practised or committed by the respondents. Learned Judge in Chambers and two Courts below have arrived at concurrent findings of fact that there was neither fraud nor misrepresentation on the part of the respondents and further no misreading or non-reading of evidence has been pointed out in the impugned judgment.

5. We find no factual or legal infirmity with the impugned judgments, therefore, leave to appeal is declined and the petitions are dismissed. S.A.K./G-32/S Leave refused.