2011 SCMR 551 (PLP)

NASIR-UL-MULK, J.

The subject-matter of this petition for leave to appeal is Property bearing No. 334/1, situated in Lane No.3, Peshawar Road, Rawalpindi Cantt. originally owned by Malik Allah Bakhsh Khokhar and his wife, Mst. Hameeda Begum. It was gifted by them orally on 25-7-1989 to their son, Malik Afzal Mehmood, necessary entry whereof was made in the record of the Cantonment Board and its possession delivered to the donee. Malik Allah Bakhsh Khokhar passed away in the year, 1993. Soon thereafter his other son, Malik Shahid Mehmood, and one of his daughters, filed a suit for declaration and partition of the properties owned by Malik Allah Bakhsh Khokhar, including, the said House No. 334/1. Issues were framed and the statement of Malik Shahid Mehmood was also recorded, whereafter the suit was withdrawn unconditionally. Meanwhile, Malik Shahid Mehmood alone filed another suit on 28-10-1998, inter alia, assailing the said gift. That suit was also dismissed as withdrawn on 30-7-1999. Malik Afzal Mehmood thereafter on 11-10-2003 filed a suit for declaration impleading only his mother alleging that she was denying his title to the house. The mother appeared before the Court and on her statement a consent decree was passed in favour of Malik Afzal Mehmood. Malik Shahid Mehmood once again became active and moved an application before the Civil Judge under section 12(2), C.P.C. for setting aside the said decree asserting that he, being necessary party to the proceedings, was fraudulently not impleaded as defendant. The Civil Judge allowed the application and set aside the judgment and decree. The District Judge, Rawalpindi, on appeal, set aside the order of the trial Court and dismissed the application under section 12(2), C.P.C. The High Court in its revisional jurisdiction upheld the order of the District Judge, which now Malik Shahid Mehmood has impugned through this petition for leave to appeal.

2. Mr. Agha Muhammad Ali Khan, Advocate Supreme Court, appearing for the petitioner, contended that dismissal of the earlier suits filed by the petitioner did not operate as res judicata as the same were not decided on merits but withdrawn by the petitioner. The learned counsel submitted that the Courts have erred in invoking Order XXIII, Rule 1(3), C.P.C. against the petitioner in that the said Rule only debarred the plaintiff from filing a suit upon a cause of action was the basis of suit already withdrawn. That the Rule does not apply to an application under section 12(2), C.P.C. filed by a party who was entitled to be impleaded in the suit decreed in favour of the plaintiff.

3. Mr. Gulzarin Kiani, Senior Advocate Supreme Court, responding to the above contentions, pointed out that the petitioner in the earlier suits filed by him had admitted the factum of gift in favour of Malik Afzal Mehmood in his testimony. That the petitioner through his application under section 12(2), C.P.C. is questioning the validity of the gift which he had assailed in his two previous suits that he withdrew unconditionally. That no fraud was committed by the respondent in not impleading the petitioner; rather, it is the petitioner who is trying to circumvent the impediments in his way by re-agitating an issue which, otherwise, cannot be reopened.

4. Undisputedly, the petitioner's earlier suits in which the gift of Property No.334/1 was assailed had been dismissed as withdrawn unconditionally. Obviously, the petitioner was debarred under Order XXIII, Rule 1(3), C.P.C. from filing of another suit questioning the validity of the gift in question. The only object of the petitioner in moving the present application under section 12(2), C.P.C. is to re-agitate the issue which already stands closed on account of his withdrawal of the suits. The petitioner cannot be allowed to do indirectly what the law bars him from doing directly. We also agree with the contention of Mr. Gulzarin Kiani, Senior Advocate Supreme Court, that an application under section 12(2), C.P.C. being a substitute for a suit the limitations imposed by law on filing of suits were relevant for applications under section 12(2), C.P.C. There is another aspect of the case which the learned counsel for the respondents had pointed out. That even if the application under section 12(2), C.P.C. filed by the petitioner is allowed and the judgment and decree passed in favour of the respondent is set aside, the respondent is willing to withdraw the suit. In that case, the petitioner will be left without remedy to question the validity of the gift in view of the dismissal of his previous suits.

5. In view of the above discussion and taking into consideration the facts of the case, we do not consider that the petitioner deserves to be granted leave to appeal. The petition is, therefore, dismissed. S.A.K./S-36/SC Leave refused.