2010 PLP 2418 (YLR)

MUHAMMAD YAWAR ALI, J.--This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order, dated 12-9-2007 passed by respondent No.1/Additional District Judge Depalpur District Okara. This case has a long chequered history. On 23-7-1998 respondent No.3 filed a suit for possession through pre-emption against the petitioner. There was a dispute with regard to the deposit of Zar-i-Soam. Both the parties kept litigating on this issue and eventually the plaintiff/ respondent No.3 was directed to deposit Rs.8,00,000 as `Zar-i-Soam'. The respondent No.3/plaintiff once again submitted an application before respondent No.1 on 23-10-2006 praying that since time for deposit of `Zar-i-Soam' was not mentioned in the earlier order, therefore the same may be done to meet the ends of justice. The aforesaid application was accepted by respondent No.1 and the respondent No.3/plaintiff was directed to deposit "Zar-i-Soam" within a period of one month from the date of passing of the impugned judgment, dated 15-3-2006. The plaintiff/respondent No.3 deposited `Zar-i-Soam' before the trial Court on 13-4-2006 i.e. within one month of passing of judgment 15-3-2006. On 1-7-2006 the petitioner/defendant submitted an application before the trial Court on the grounds that `Zar-i-Soam' was deposited beyond the prescribed time period. The application after issuance of notice to the other side was dismissed vide order, dated 13-9-2006. The petitioner/defendant filed a revision petition against the order, dated 13-9-2006 which was dismissed by respondent No.1 vide impugned order, dated 12-9-2007. Learned counsel for the petitioner submits that application, dated 22-3-2006 filed by respondent No.3 does not disclose under what provision of law it has been filed. The order, dated 15-3-2006 wherein revision petition of respondent No.3 was dismissed had attained finality and respondent No.1 had become functuous officio. The application before respondent No.1 was neither an appeal nor a revision or a review and as such could not have been entertained by him. Learned counsel submits that a valuable right had accrued to the petitioner and miscarriage of justice has occasioned in as much as time for deposit of `Zar-i-Soam' was extended without hearing the petitioner and the impugned order militates against all known norms of natural justice. In support of his arguments learned counsel places reliance on Mst. Zairha Khatoon v. Mst. Kishwar Jamal 2009 MLD 67, Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729, Mst. Zulaikh Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443, Tayyab and others v. Falak Sher and others 2008 YLR 218, Akbar v. Muhammad Aslam and another 2005 YLR 221, Khurshid Akbar v. Mian Manzur Ahmed and another 1982 SCMR 824, Painda Khan v. Member (Judicial-I) Board of Revenue, Punjab, Lahore and 4 others 1995 CLC 1816, Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983 and Musthaq and others v. Land Acquisition Collector and others PLJ 1999 Lahore 756 (DB). On the other hand learned counsel for respondent No.3 while opposing the petition submits that application, dated 22-3-2006 is to be taken as an application moved under section 152/153, C.P.C. wherein a Clerical or arithmetical mistake in judgments, decrees, orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. Learned counsel further submits that on an application which was filed before Additional District Judge time was extended by him vide order, dated 22-3-2006 and if the petitioner was aggrieved by the said order he could have impugned the same before any higher forum. Lastly it is submitted that `Zar-i-Soam' was in fact deposited well in time and this dispute infact pertains to an amount for an enhanced amount of `Zar-i-Soam' and as such is not hit by section 24 of the Punjab Pre-emption Act, 1991. In support of his arguments learned counsel places reliance on Muhammad Din and others v. Jamal Din and others 2007 SCMR 1091 Shakeel Ahmad v. Abduil Ghaffar and others 2009 YLR 1384 and Muhammad Ashraf v. Ghulam Safdar 2009 YLR 1287. The petitioner on 1-7-2006 filed an application before the trial Court wherein it was prayed that suit of the respondent No.3/plaintiff be dismissed on account of non-deposit of `Zar-i-Soam' within time as envisaged by section 24 of Punjab Pre-emption Act, 1991. Respondent No.3/plaintiff took a plea that appellate Court in its order, dated 15-3-2006 did not set any time limit for deposit of `Zar-i-Soam' and this mistake could have been corrected without issuing notice to the contesting party. The learned trial Court dismissed the application on the grounds that it had no jurisdiction to set aside or vary an order passed by an Additional District Judge. In a revision petition which was filed against the order, dated 13-9-2006, there is no prayer for setting aside of that order in fact the revision petition is directed against an order of respondent No.1, dated 22-3-2006. It may be pointed out that order, dated 22-3-2006 was never challenged before any higher forum and attained finality. The petitioner in the revision petition did not impugn the order of the trial Court, dated 13-9-2006 wherein an application for rejection of plaint on the grounds of non-deposit of `Zar-i-Soam' in time was dismissed and the petitioner cannot be permitted to challenge the same at this stage. Similarly order, dated 22-3-2006 was never challenge before a Court of competent jurisdiction. No material illegality' or irregularity has been pointed out in the impugned order, dated 12-9-2007 passed by respondent No.

1. The upshot of the above discussion is that there is no merit in this petition and it is dismissed. M.U.Y./35/L Petition dismissed.