1998 PLP 542 (SCMR)

‑‑‑‑S. 12(2) & OXLI, R. 23‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Plaintiff's suit relating to land in question, was decreed while that of defendants relating to same subject‑matter was dismissed‑‑‑Decree in plaintiff's suit became final for no appeal or revision was filed against the same‑‑‑Application in terms of S. 12(2), C.P.C. was, however, filed which was withdrawn by defendants with permission to file fresh application‑‑‑First Appellate Court set aside order of Trial Court whereby defendants were allowed to file fresh application under S. 12(2), C.P.C.‑‑‑Defendant's revision was still pending in High Court when they brought second suit on same subject‑matter which was dismissed by Trial Court as also by Appellate Court‑‑‑High Court in exercise of revisional jurisdiction remanded suit as well as application under S. 12(2), C.P.C. for fresh trial‑‑‑Validity‑‑‑Plaintiff's contention was that defendant's second suit having been dismissed by concurrent findings of fact of two Courts below, High Court could not have interfered in revision in setting aside concurrent findings of Courts below on question of fact‑‑‑Remand of suit for retrial was neither justified nor sustainable in law and facts on record‑‑‑Leave to appeal was granted to consider contentions raised by petitioner. Ch. Muzamal Khan, Advocate Supreme Court instructed by Walayat Umer, Advocate‑on‑Record for Petitioner. Date of hearing: 22nd May, 1996. ABDUL HAFEEZ MEMON, J.‑‑‑Ahsan Raza, the petitioner herein, seeks leave to appeal against the judgment dated 16‑7‑1995 passed by the Lahore High Court in Civil Revision No.856‑D of 1995.

2. Briefly the facts are that two suits were filed, one by the petitioner bearing Suit No.566 of 1985, and the other by the respondents bearing Suit No.544 of 1990. Both the suits relate to the land measuring 2 Kanals situated in Khasra No.2071 / 1, Village Kot Daska, Tehsil Daska. In Suit No.566 of 1985 filed by the petitioner he claimed that he was the owner of the land in dispute, and in one portion of the building standing on the said land the police had set up a 'Chowki' and were in possession of one room of the said building. The `petitioner asked the police department to pay rent but neither they paid rent nor they admitted him to be the owner of the land, and hence, he, being the owner, was entitled to the possession of the property in dispute from the police department. In Suit No.544 of 1990 filed by the respondents they challenged the tiltle of the petitioner to the land in dispute on the ground that allotment of the suit land to the original allottee, from whom the petitioner had purchased the land, was not valid and claimed to be the owners of the disputed land. The earlier suit filed by the petitioner was decreed by the trial Court holding that it had been proved on record that the petitioner was the owner of the property in dispute and was entitled to get possession thereof from the defendants or anybody else who was in possession thereof. The decree became final as no appeal or revision was filed against it. However, an application under section 12(2), C.P.C. was filed against this decree by the respondents. The said application was withdrawn by the respondents with permission to file a fresh application, and such permission was granted by the trial Court; against which the petitioner filed a revision before the Additional District Judge claiming that the learned Civil Judge ought not to have permitted the filing of afresh application by the respondents after the previous one was withdrawn by them. The learned Additional District Judge allowed the revision, against which the respondents filed a writ petition in the High Court which is still pending. Thereafter, the second Suit No.544 of 1990, filed by the respondents, was dismissed. In the appeal filed by the respondents against it, the Appellate Court concurred with the findings of the trial Court and dismissed the appeal against which the respondents filed a revision in the High Court. The learned Single Judge in the High Court allowed the revision; set aside the judgment and decree passed by the Courts below and remanded the case to the trial Court for re hearing with further permission to the parties to adduce fresh evidence. The learned Single Judge further observed that the application under section 12(2), C.P.C., filed by the respondents in the first suit decreed in favour of the petitioner, be also heard and decided by the trial Court alongwith the suit remanded to it. Hence this petition.

3. The main contention raised by the learned counsel for the petitioner was that the second Suit No.544 of 1990 filed by the respondents had been dismissed by the trial Court and the learned Additional District Judge having concurred with the findings of the trial Court and dismissed the appeal, it was not open to the High Court, in revision, to interfere with the concurrent findings of fact of the two Courts below, and the learned High Court, therefore, was not justified in allowing the revision and setting aside the decree passed in the Suit No.544 of 1990, and remanding the suit for retrial on the stated ground which was neither justified nor sustainable in law and facts on record. Learned counsel next contended that the learned High Court was also in error in remanding the case in Suit No.544 of 1990 without considering the evidence on the record. Learned counsel lastly submitted that Suit No.566 of 1985, filed by the petitioner for possession and decreed by the Court had no effect on the Suit No.544 of 1990 filed by the respondents, and the learned Single Judge was not justified in remanding Suit No.544 of 1990 of the respondents for retrial on the ground stated by the learned Judge in his judgment.

4. The contentions raised by the learned counsel need consideration, and we grant leave to appeal. A.A./A‑1396/S Leave granted.