2003 PLP 2610 (YLR)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

The facts giving rise to this petition are that the plaintiff/respondent No. 1, filed First Class Suit No.28 of 1991 on 29-1-1998 against respondent No.2, Muhammad Hashim for specific performance of contract and perpetual injunction, alleging that the suit-land was purchased by respondent No.1 from respondent No.2, under agreement of sale dated 17-2-1980. On 11-6-1981, respondent No.1 submitted an application under Order I, rules 10, C.P.C., praying that Abdullah predecessor-in-interest of the petitioners Nos. 1 to 7 and 9 and petitioner No.8 tray be allowed to be joined as defendants Nos.2 and

3. The application was allowed and late Abdullah as well as petitioner No.

8. Ahmad Khan were joined as defendants 2 and

3. On the basis of bailiff's report dated 3-4-1982 supported with the affidavits sworn by two witnesses Ali Hassan and Haji, ex pane order was passed against them. On 9-5-1982 Mr. Ali Nawaz Ghanghro, Advocate, filed Vakalatnama signed by late Abdullah. An application under Order 9, rule 7, C.P.C. was submitted by Mr. Ali Nawaz Ghanghro, on the same date and with the consent of learned counsel for plaintiff respondent No.1 Nisar Ahmad, the ex pane order dated 3-4-1982 was set aside, on 24-6-1982. However, the defendants failed to file the written statements and another ex parte order was made on 23-5-1984. Ex parte proof was filed by the plaintiff/respondent No. 1, Nisar Ahmed on 28-10-1984 and the suit was decreed ex parte on 26-1-1985. On 8-2-1986 an application was submitted under section 12(2) read with Order 9, rule 13, C.P.C., on behalf of defendants 2 and 3, praying that- the ex parte order be set aside and they may be allowed to defend the suit. In support of the application it was contended that defendant No.2, Abdullah died about two and half years back leaving 8 legal heirs. It was further alleged that defendant No.3, Ahmad Khan is minor aged about 7 years which fact was deliberately concealed and the decree was obtained by fraud against late Abdullah and minor Ahmad Khan. It was alleged that the summons were never served on Abdullah and Ahmad Khan and they never engaged any Advocate.

2. Vide order dated 15-1-1987 the learned Senior Civil Judge, heard the learned Advocates for the parties and directed them to produce the evidence for deciding the following issues:- (1) Whether the decree has been obtained by fraud and misrepresentation? (2) Whether the application is barred by time? (5) What should the order be?

3. Prior to the passing of above order, the plaintiff/respondent No.1 had filed objections to the application under section 12(2), C.P.C. contending that the application was barred by time, the defendants 2 and 3 were duly served with the summons and they, had engaged Mr. Ali Nawaz Ghanghro, Advocate on 9-5-1982 who had taken at least 20 adjournments for filing written statement. On 30-5-1982 defendant No.2, Abdullah appeared in person and submitted adjournment application. It was denied that the defendant No.3, is minor. It was further alleged that defendant No.3, is nephew and near relative of defendant No.2, late Abdullah, who was looking after the interest of defendant No.3 in the case. It was pleaded that for the purpose of application under section 12(2), C.P.C., the defendant No.2 had engaged advocate for himself as well as for defendant No.3. During the pendency of application under section 12(2), C.P.C., the learned counsel for defendants 2 and 3 filed an application under Order 32, rule 3, C.P.C., praying that Haji Abdul Fatah son of Abdullah Brohi, be appointed as guardian-ad-litem of defendant Ahmad Khan, who is minor.

4. The parties led their respective evidence on the issues framed by the learned Senior Civil Judge. for the purpose of application under section 12(2), C.P.C.

5. Learned Senior Civil Judge, dismissed the application under section 12(2), C.P.C. vide order dated 26-10-1988. The Issue No.1 was decided in negative for the reason that according to endorsement of bailiff dated 4-3-1982 and the statements of Ali Hassan and Haji, the summons were duly served on defendants 2 and 3 as they had refused to accept the same. Subsequently, after the ex parte order, an application under Order 9, rule 7, C.P.C., was submitted through Mr. Ali Nawaz Ghanghro, Advocate, whose power was available on record and the ex parte order was set aside by consent. In his affidavit in support of application under Order 9, rule 7, C.P.C., defendant No.2, Abdullah, did not disclose that Ahmad Khan, defendant No.3, was minor. The contention that defendant No.2, late. Abdullah had not engaged Mr. Ali Nawaz Ghanghro, Advocate was repelled for the reason that nobody could dare to manage the filing of power by Mr. Ali Nawaz Ghanghro, Advocate. It was further observed that defendant No.3, Ahmad Khan and his father Mullah Muhammad, did not appear in Court with the result that their statements were not recorded. The learned Senior Civil Judge observed that the failure of Ahmad Khan and his father Mullah Muhammad in appearing for their statements in Court leads to the adverse inference that if they had appeared they would not have supported the plea raised in the application under section 12(2), C.P.C. The learned Senior Civil Judge, further observed that, in spite of direction of the Court, defendant No.3, Ahmad Khan was not produced in Court and his School Leaving Certificate on the point of age was also not produced. The learned Senior Civil Judge held that, decree was not obtained by any fraud or misrepresentation.

6. While deciding Issue No.2, the learned Senior Civil Judge held that the period of limitation for submitting application under section 12(2), C.P.C. was 90 days as provided in Article 173 of the Limitation Act and the period of limitation provided in Article 181 of the Limitation Act, was not attracted. Reliance was placed in this behalf on a reported judgment of this Court in the case of Sikandar v. Saleh Muhammad, 1983 CLC 1590. Learned Senior Civil Judge held that, the notice of execution was served on 28-5-1985 and the application under section 12(2), C.P.C. was submitted on 8-2-1986 i.e. after 4 months from the date of knowledge and therefore, it was barred by time.

7. Being aggrieved with the rejection of application under section 12(2), C.P.C., the petitioners submitted revision application under section 115, C.P.C., being Civil Revision No.34 of 1988. The revision application was fixed for hearing from time to time. The learned counsel for' the petitioners/applicants submitted repeated adjournment applications with the result that, on 5-11-1989, the learned Additional District Judge rejected the adjournment application for the reason that 8th adjournment was being sought and dismissed the revision application for non-prosecution. On 27-1-1990 the order dismissing the revision application for non prosecution was, recalled and the revision application was restored to its original number. Even after restoration of the revision application the learned counsel for the applicant/petitioner got adjournments for several years and thereafter submitted an application under Order 41, rule 27, C.P.C. on 28-11-1994, praying that the documents already produced with the revision petition (which were not produced before the trial Court/Executing Court) may be taken into consideration by way of additional evidence. The application under Order 41, rule 27, C. P. C. was dismissed on 14-2-1996 alongwith the revision application for non prosecution. However, restoration application was allowed with the consent of learned counsel for the respondent No.1. The application under Order 41, rule 27, C.P.C. was ultimately dismissed on 6-11-1996 and thereafter, the revision application was decided on 10-12-1996. It was contended before the learned First Additional District Judge, on behalf of the petitioners that summons were not duly served on defendant No.2. Abdullah and defendant No.3 Ahmad Khan and therefore, the ex parte order was illegal. It was further argued that defendant No.3, Ahmed Khan was minor at the time of institution of suit and no minor could be sued without appointment of guardian-ad-litem. It was further argued that the period of limitation for filing application under section 12(2), C.P.C. was three years as provided in Article 181 of the Limitation Act and not 90 days under Article 173 of the Limitation Act, as held by the learned trial Court.

8. On the other hand, the learned counsel for the respondent No.1, submitted that the defendants 2 and 3 were duly served with the summons on 3-4-1982 as a result whereof the suit was directed to proceed ex parte. However, subsequently, Mr. Ali Nawaz Ghanghro, Advocate, filed power on behalf of defendant No.2; which was allowed by consent and the ex parte order was set aside. He further argued that the learned counsel for defendants 2 and 3 filed joint written statement which was not accepted for the reason that the suit was again ordered to be proceeded ex parte. The learned First Additional District Judge, after hearing the learned Advocates for the parties observed that the defendants 2 and 3 before the trial Court were Abdullah and Ahmed Khan. The application under section 12(2), C.P.C. was filed by Noor Muhammad son of Abdullah, while the revision application has been filed by a person other than Noor Muhammad and he has not been joined as party to the proceedings. He held that the revision was bad for non-joinder of the necessary parties. The learned First Additional District Judge, Larkana, observed that the learned counsel for petitioners was not able to satisfy as to why, Noor Muhammad who submitted application under section 12(2), C.P.C. was not joined as a party in the revision application,. He further observed that date of birth of defendant No.3, Ahmad Khan has been shown as 21-7-1981 while the sale-deed in his favour is dated 23-1-1981 and therefore, the contention raised by the learned counsel for the petitioner was not tenable. He further observed that the application under Order 41, rule 27, C.P.C. was filed at the very belated stage i.e. after about 6 years of the filing of revision application. He held that, the learned counsel for the petitioners failed to point out any illegality in the order passed by the trial Court, whereby application under section- 12(2), C.P.C. was dismissed. The learned First Additional District Judge, further held that the learned trial Court has duly considered all the contentions raised in support of the application under section 12(2), C.P.C. and the order of the trial Court does not suffer from any illegality. The learned First Additional District Judge, further observed that the petitioner Abdullah had engaged very senior Advocate Mr. Ali Nawaz Ghanghro and after seeking several adjournments the suit was decided ex parte. He, therefore, held that the application under section 12(2), C.P.C. was rightly dismissed and was not open to any exception.

9. Being still dissatisfied with the dismissal of revision application the petitioners have approached this Court invoking Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, seeking declaration that the judgments passed by the learned two Courts below dismissing the application under section 12(2), C.P.C. are illegal and without lawful authority and praying that the learned trial Court be directed to allow the petitioners to file written statements and then decide the suit on merits.

10. We have heard Mr. Mohan Lai K. Makhijani, learned counsel for the petitioners and Mr. Rehmat Ali Rajput, learned counsel for the respondent No.1.

11. Mr. Mohan Lal, learned counsel for the petitioners has addressed lengthy arguments and has further submitted synopsis of his arguments in writing as-well. His first contention was that the suit filed by the plaintiff/respondent No. 1. was not maintainable as the defendant No.3/petitioner No.8, was minor at the time of filing of the suit. He was required to be sued through guardian-ad-litem as provided under Order 32, rule 3, C.P.C. The mandatory provision of Order 32, rule 3, C.P.C. was not complied with and therefore, the decretal of suit by the trial Court was illegal. His second contention was that the minority of defendant No.2/petitioner No.8 Ahmad Khan stood proved from the affidavits of Ali Hassan and Haji, which were sworn on 3-4 1982 in support of the factum of service of summons on defendants Nos.2 and

3. His grievance is that the learned trial Court while passing impugned order dated 26-10-1988, whereby the application under section 12(2), C.P.C. was dismissed, has ignored the above facts, thus, the order of trial Court suffers from non-reading of evidence on record. He has submitted that the revisional Court did not call for the R & Ps containing the affidavits of the above witnesses on the point of service of summons on defendants Nos.2 and

3. The learned. counsel was specifically asked whether he had filed the certified copies of the affidavits of two witnesses before the revisional Court as required under section 115, C.P.C. to which he replied in negative. He submitted that the copies of the affidavits were not supplied to the petitioners. However when asked to show if any application for supply of certified copies was submitted, he had no option but to concede that no such application is available on record. The learned counsel for the petitioners was pointed out that under first proviso to section 115, C.P.C., a person making an application is required to furnish the copies of the pleadings and documents on the record of the subordinate Court and the revisional Court is required to dispose of such application without calling for the record of subordinate Court and thus, if the R & Ps was not called by the revisional Court, it was in accordance with the provision of law and no illegality has been committed. The learned counsel for the petitioners had no answer at all. The learned counsel for the petitioners has next contended that the plaintiff has not brought evidence on record to show that the defendant Ahmad Khan was adult and the learned counsel for the respondent No. 1/plaintiff cannot be permitted to contend that Ahmad Khan was adult. The learned counsel for the petitioners has referred to some discrepancies in the endorsement made by the bailiff dated 4-3-1982 and the affidavits sworn by two attesting witnesses, but wt; would not like to advert to such minor facts, as it is beyond the scope of the application under Article 199 of the Constitution. The learned counsel for the petitioners has further submitted that summons were not sent by registered post A/D as required under Order 5., rule 10, C.P.C. and therefore, the ex parte decree was liable to be set aside. Mr. Mohan Lal maintained that summons were not served on defendant No.2, Abdullah as well and therefore, the question of engaging Mr. Ali Nawaz Ghanghro, Advocate does not arise. Dealing with the evidence led by the petitioners in the proceedings under section 12(2), C.P.C., he has submitted that P.Ws. Abdul Fatah, Haji Jan Muhammad and Haji Muhammad were examined who have deposed that Ahmad Khan was minor and Abdullah had already died when the suit was decreed. The learned counsel for the petitioners has further urged that the application under section 12(2), C.P.C. can be submitted within a period of three years as provided in residuary Article 181 of the Limitation Act, therefore, the learned two Courts below have erred in holding that the application was barred by time and that the period of limitation prescribed was 90 days under Article 173 of the Limitation Act. Regarding the maintainability of the present petition he has submitted that all the Courts and Tribunals are required to decide the contentious issues in accordance with the law and the judgments otherwise than in accordance with the-law shall be deemed to be without jurisdiction and can be challenged under-Article 199 of the Constitution. He has further submitted that when findings have been, delivered which are based on no evidence or misreading of evidence it has become a question of jurisdiction and thus, can be questioned in writ jurisdiction.

12. On the other hand, Mr. Rehmat Ali Rajput, learned counsel for the respondent No. 1, has submitted that throughout the proceedings he has tried utmost for decision on merits. In support of his contention he has pointed out that ex parte order was passed against. the defendants Nos. 2 and 3 on 3-4-1982. On 9-5-1982, Mr. Ali Nawaz Ghanghro, Advocate filed Vakalatnama on behalf of defendant No.2 and submitted application under Order 9, rule 7, C.P.C. The learned counsel for the plaintiff gave no objection and the ex parte order was set aside by consent. Mr. Ali Nawaz Ghanghro, a Senior Advocate practising at Larkana sought at least 18 adjournments and one adjournment application was submitted by late Abdullah himself which is available on record. In spite of giving full latitude by the learned trial Court, no written statement was filed and therefore, the suit was decreed ex parte. Mr. Rehmat Ali Rajput, learned counsel for the respondent No.1; has submitted that the contention of Mr. Mohan Lal, on the point of non-service of summons on late Abdullah is totally inconsequential because the first ex pane order made on the basis of service of summons and the report of bailiff supported with the affidavits of two witnesses was set aside with the consent of counsel for respondent No.

1. The second ex pane order followed by ex pane decree holding the field has been passed on the basis of non-filing of written statement by late Abdullah. He has further submitted that the present Constitution petition has been filed assailing the order of trial/Executing Court rejecting the application under section 12(2), C.P.C. and the dismissal of revision application filed by the petitioners. Mr. Rehmat Ali Rajput, has maintained that the application under section 12(2), C.P.C. is based on the facts. He has contended that the lengthy arguments addressed by Mr. Mohan Lal on the point of law are based on the assumption of facts, which have not been established in accordance with the law. He has vehemently argued that during the proceedings under section 12(2), C.P.C. full opportunity was provided to the petitioners to prove the facts pertaining to non-engaging of Mr. Ali Nawaz Ghanghro, Advocate by late Abdullah predecessor of all the petitioners except petitioner No.8 and the minority of petitioner No.8, but they utterly failed to prove both the facts alleged by them and both the Courts below gave concurrent findings of facts against the petitioners, therefore, the Constitution petition is not maintainable as the concurrent findings of facts do not suffer from any infirmity. Addressing arguments on merits Mr. Rehmat Ali Rajput, contended that the best witness on the point of non engaging of Mr. Ali Nawaz Ghanghro by late Abdullah, was Mr. Ali Nawaz Ghanghro himself but he was never called in evidence by the petitioners to establish that the Vakalatnama filed by Mr. Ali Nawaz Ghanghro was unauthorized, the adjournment application signed by late Abdullah was actually not signed by him and at least 18 adjournments sought by Mr. Ali Nawaz Ghanghro, Advocate, on behalf of late Abdullah were unauthorized. He has submitted that so far, the minority of petitioner No.8 Ahmad Khan, is concerned, the burden was on the petitioners to establish the same. Mr. Rajput has submitted that the factum of minority of Ahmad Khan has not been referred in the entry in the Revenue Record of Rights. Late Abdullah who was maternal uncle of Ahmad Khan never disclosed in his application under Order 9, rule 7, C.P.C., or affidavit appended thereto that Ahmad Khan was minor. The plea of minority of Ahmad Khan was taken for the first time in the application under section 12(2), C.P.C. Mr. Rajput vehemently argued that in spite of repeated direction of the trial/Executing Court, neither Ahmad Khan nor his father were produced in evidence to establish the fact of minority of Ahmad Khan. He has submitted that all these facts have been fully considered by the learned two Courts below and neither there is any infirmity in appreciation of evidence, nor the impugned order of the learned two Courts below dismissing the application under section 12(2), C.P.C. suffer from non reading or misreading of evidence. He has contended that the petitioners in spite of ample opportunity failed to establish questions of facts alleged by them and consequently the Constitution petition is liable to be dismissed.

13. In rebuttal Mr. Mohan Lal, maintained that the Constitution petition is maintainable as orders are without jurisdiction and illegal in nature which can be challenged in Constitution petition. He has further submitted that in exercise of Constitutional jurisdiction, the High Court can examine the orders of lower forums to see whether they are in accordance with the law or not. He has further submitted that the contention of Mr. Rajput that the order passed in revision cannot be challenged in Constitution petition is applicable to the orders passed in revision which are legal and within jurisdiction. According to him where the law was not correctly followed, the order passed in revision could be assailed in Constitution petition. He has urged that the orders passed by the learned two Courts below on the application under section 12(2), C.P.C. are illegal and without lawful authority. They deserve to be upset and the case be remanded to trial Court for appropriate decision in accordance with the law.

14. We have given our very careful and anxious consideration to the contentions raised by the learned advocates for the parties and have perused the entire material available on record. We have gone through the entire R & Ps in First Class Suit No.98 of 1981, the record pertaining to the proceedings under section 12(2), C.P.C. and have perused the order of learned trial Court rejecting the application under section 12(2), C.P.C. and the order in revision passed by the learned First Additional District Judge, Larkana.

15. Before we proceed to examine the contentions raised before us and give our finding, we would like to observe that a Constitution petition is not a substitute for the appeal or revision. One of us (Muhammad Mujeebullah Siddiqui) has considered the scope of Constitution petition in such matters in the case of Saifullah v. Muhammad Bux 2003 MLD

480. In this judgment it has been held as follow :-- "I am of the considered opinion that question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by this Court, for the simple reason that in doing so the petition shall be converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters to first appeal shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated. No Constitutional petition in rent matters and in all such cases in which no second appeal or revision is provided in law, shall be entertained, until and unless there is a jurisdictional error committed by the Courts below. The exercise of jurisdiction in a perverse or arbitrary manner or ignoring the material available on record or violation of any provision of law, substantive or procedural, causing miscarriage of justice of violation of established principles of administration of justice shall bring the case within the purview of jurisdictional error." We reiterate and approve the above findings.

16. As the learned revisional Court has not dismissed the revisional application on the point of limitation and has dismissed the same on merits, therefore, we propose to decide the case on merits alone. The consideration pertaining to point of limitation is deferred and left open for decision in some other appropriate case.

17. Now adverting to the facts obtaining on the recording of this case and questions of law requiring our consideration, we would like to observe that Mr. Mohan Lal, learned counsel for the petitioners has very ably addressed, very lengthy arguments. However, we are of the opinion that most of the arguments addressed by Mr. Mohan Lal are not germane to the issue requiring our consideration, and are beyond the scope of Constitution petition. Mr. Mohan Lal has dealt with the issues pertaining to the facts which are beyond the scope of Constitution petition. His arguments are mainly based on assumption of, establishment of the question of facts, which the petitioners had totally failed to establish. We find substance in the contention of Mr. Rehmat Ali Rajput that Mr. Mohan Lal has very conveniently ignored the real point in issue which pertains to the exercise of jurisdiction pertaining to the proceedings under section 12(2), C.P.C. and has attempted to sway the Court on the points of law based on assumptions and presumptions. Thus, the arguments addressed by Mr. Mohan Lal on the points of law appear to be attractive in the first instance, but when examined in the light of material available on record, the contentions raised by Mr. Mohan Lal lose all the apparent strength and vitality.

18. While replying the contention of Mr. Rehmat Ali Rajput, that the petition is not maintainable as the application under section 12(2), C.P.C. has been dismissed on appreciation of facts only and similarly the revision application has also been dismissed on appreciation of facts, Mr. Mohan Lal contended that the order passed in revision, without jurisdiction and not in accordance with the law can be assailed in the constitution petition. In principle this proposition of law is correct, Thus, we would like to examine whether the learned two Courts below have passed the orders without jurisdiction and not in the manner warranted in, law or the impugned orders are in accordance with the dictates of law. Before proceeding further we would like to reiterate that a writ petition under Article 199 of the Constitution is not a substitute for appeal and further that this Constitution petition does not arise out of the ex parte judgment which attained finality but out of the proceedings under section 12(2), C.P.C. Prior to the insertion of subsection (2) to section 12, C.P.C., the validity of a judgment, decree or C order on a plea of fraud, misrepresentation or want of jurisdiction could be challenged by a separate suit. However, with the enactment of section 12(2), C.P.C. such remedy now can only be sought by an application to the Court which passed the final judgment, decree or order.

19. No procedure has been prescribed for the determination of application under section 12(2), C.P.C. However, by now it stands established by the judgments of superior Courts that whenever such E application is presented, evidence in support or rebuttal of the contents of the application shall have to be led. If any authority is required, it is available in the following cases:-- (1) North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418; (2) Ghulam Muhammad v. M. Ahmad Khan and others 1993 SCMR 662; (3) Haji Abdul Ghafoor v. Abdul Qayyum and 3 others 1996 SCMR 1524, and (4) Abdul Razzaq v. Muhammad Islam and others 1999 SCMR 1714. Thus, although the proceeding under section 12(2) is not a separate suit but it partakes the character and salient features of the suit, barring the application which is not bona fide and is dismissed as non maintainable without full-fledged and elaborate inquiry. A Court to which such application is submitted is required to formulate the issues/points for determination and give opportunity to both the parties to lead evidence in support and rebuttal of the contents of such application. The allegations of fraud and this-representation are to be established by an elaborate inquiry. The fraud envisaged under section 12(2), C.P.C. includes untrue statements and active concealment of facts. In this regard an application on behalf of legal representative has to be restricted to grounds which the deceased, if alive, could have asserted.

20. In the light of above principles and propositions we now proceed to examine if the learned two Courts below have acted in accordance with the law and within the parameters of jurisdiction vested in them or have exercised the jurisdiction otherwise than in accordance with law or in a manner which can be held to be perverse or illegal and without jurisdiction.

21. The examination of record shows that application under section 12(2), C.P.C. was submitted on 8-2-1986 on- behalf of legal heirs of defendant . No.2 (late Abdullah) and defendant No.3 (Ahmad Khan). It was alleged in the affidavit in support of the application that the defendant No. 1 sold 50 paisa share in his land to late Abdullah on 4-3-1976 and on 22-1-1981 sold full survey number and the record was mutated in favour of Abdullah and Ahmed Khan. It was further stated that Ahmed Khan is minor aged 7 years and the decree has been obtained by concealment of facts against a dead person Abdullah and minor Ahmed Khan. It was further alleged by Noor Muhammad one of the legal heirs of late Abdullah that his father never engaged Advocate and the fact of engaging Advocate has been manipulated. The learned trial Court after hearing the learned Advocates for the parties framed three issues which have already been reproduced in the narrative part of this judgment. It was specifically alleged by the respondent No.1, Nisar Ahmed in his objections that late Abdullah had engaged Mr. Ali Nawaz Ghanghro, Advocate on 9-5-1982 and about 18 adjournments were sought by the learned counsel for filing written statements. Due to non-filing of written statements the suit was decreed ex parte. It was also alleged that the adjournment application dated 30th May, 1982 was signed by late Abdullah himself. It was also contended that defendant No.3 was nephew of defendant No.2, late Abdullah. After framing of issues the learned trial Court provided full opportunity to the petitioners to lead the evidence. At this stage, it would be appropriate to observe that petitioner Haji Abdul Fatah son of Abdullah Brohi applied for appointment as guardian-ad-Iitem of petitioner Ahmed on the application submitted by learned counsel for the petitioners under Order 32, rule 3, C.P.C. In the affidavit of Noor Muhammad (one of the petitioners) dated 8-2-1986 in support of application under section 12(2), C.P.C., age of Ahmed Khan was shown as 7 years. In the application under Order 32, rule 3, C.P.C. dated 18-4-1987 the age of Ahmed Khan was shown as 12 years. In the affidavit sowrn by Haji Abdul Fatah, petitioner, it was alleged that the age of Ahmed Khan is shown in the identity card of school as 12 years.

22. It appears that the petitioners submitted application under Order 32, rule 3, C.P.C. with the intention that if the application is allowed without inquiry it shall give a leverage to the petitioner and they would be able to contend that the trial Court appointed guardian-ad-litem after satisfying itself that petitioner Ahmed Khan was minor and thus, it would be sufficient ground for setting aside of decree at least against petitioner Ahmed Khan. However, the respondent No.1, filed objections to this application also and alleged that Ahmed Khan was major/adult from the year 1980 and the plea of minority is an afterthought which has been fabricated and that the petitioners were fabricating false documents in support of the contention. The learned trial Court was also vigilant and cognizant of the issue under consideration. The trial Court therefore, passed following order on 16-9-1987:-- "The perusal of file shows that real question of controversy in this matter is age of defendant Ahmed Khan. The defendants have produced photostat copy of card issued to Ahmed Khan by K.T.C. showing him to be student. Since the real question in this matter is age of defendant Ahmed Khan, hence learned counsel for defendants is directed to produce certificate from Headmaster of the school, showing the date of birth of defendant Ahmed Khan mentioned in General Register of the School. Put up to 10-10-1987."

23. After the above direction, the petitioners took four adjournments seeking time for production of certificate from Karachi showing the date of birth of petitioner Ahmed Khan. On the fifth date i.e. 23-12-1987, the petitioner No.8 Ahmed Khan submitted an application bearing his thumb impression and produced a certificate on a plain paper issued by a Madarsa situated at Quetta. It is interesting to note that the application under section 12(2), C.P.C. taking plea of the minority of the Ahmed Khan was submitted on 8-2-1986. No certificate on the point of age was produced from any school. The application under Order 32, rule 3, C.P.C. was submitted on 18-4-1987 after about one year and two months of the submission of application under section 12(2), C.P.C. In the application under section 12(2), C.P.C. age of Ahmed Khan was shown as 7 years and in the application under Order 32, rule 3, C.P.C., his age was shown as 12 years. Photostat copy of an identity card issued by some Madarsa at Karachi was produced alongwith application under Order 32, rule 3, C.P.C., showing the date of issuance of identity card as 24-1-1987 and when directed by the Court to produce original certificate from Educational Institution, showing date of birth, four dates were taken with the plea that the petitioners have gone to Karachi for collecting the certificate from, school but certificate on the plain paper issued from a Madarsa situated at Quetta, was produced showing the date of birth of Ahmed Khan as 19-3-1976. It is also pertinent to note that the application dated 23-2-1987 bears thumb-impression of petitioner Ahmed Khan while photostat copy of the identity card of the educational institution at Karachi produced alongwith application under Order 32, rule 3, C.P.C. bears signature of Ahmed Khan. Even after producing certificate from some Madarsa at Quetta, adjournment was sought for production of certificate on the point of age. On 4-5-1988 the petitioners produced two witnesses namely Abdul Fatah and Haji Jan Muhammad. No other witness was present and therefore, trial Court closed the petitioners' side for the reason that the last chance was given to them on the previous date. However, with the consent of learned counsel for respondent No.1. the petitioners side was reopened on 29-6-1988. The petitioner produced another witness namely Haji Muhammad and then closed their side. Neither petitioner Ahmed Khan nor his father Mullah Muhammad were produced before the Court, with the result that best evidence was withheld by the petitioners themselves. If the petitioner Ahmed Khan was really a minor then there was no impediment in producing him before the Court. His father was also not produced to testify the age of petitioner Ahmed Khan. At this juncture, we would further like to state that during the course of arguments before us we asked Mr. Mohan Lal, if Ahmed Khan petitioner No.8, has received education in any educational institution. He gave a categorical statement to the effect that petitioner Ahmed Khan was admitted in primary school of his village namely Audi Jagir, only where he received education for a very short period only and then dropped out. If it is so, there is no explanation on record as to how, student identity card, photocopy whereof was produced alongwith the application under Order 32, rule 3 was issued from Karachi and how a certificate from a Madarsa at Quetta was procured in respect of petitioner Ahmad Khan. On page 51 of the file of revision application a School Leaving Certificate from Primary School Audi Jagir, is available. According to this certificate the date of birth of petitioner Ahmed Khan is 21-7-1981. According to entry in the Revenue Record, the disputed land in the name of petitioner Ahmed Khan was purchased vide statement recorded on 23-1-1981. This document has been produced alongwith this petition also and we asked Mr. Mohan Lal, to explain as to how, land in the name of Ahmed Khan could be purchased on 23-1-1981 when according to School Leaving Certificate of Primary School Audi Jagir, petitioner Ahmed Khan was born on 21-7-1981. Mr. Mohan Lai had no explanation at all. The perusal of record further shows that in the affidavit of petitioner Abdul Fatah to the application dated 18-4-1987 age of petitioner Ahmed Khan is 12 years while at the time of filing revision in the month of November, 1988 age of Ahmed Khan is shown as 10 years. It is not explained as to how, age of Ahmed Khan decreased instead of being increased. In this petition, filed in the month of January, 1997, the age of petitioner Ahmed Khan is shown as 21 years. However if, at the time of filing revision in the year 1988 petitioner Ahmed Khan was aged 10 years, it is not known as to how, he became aged 21 years in the year 1997.

24. A resume of the facts on record shows that the learned trial Court adopted a proper procedure. Provided full opportunity to the petitioners to prove that late Abdullah had not engaged Mr. Ali Nawaz Ghanghro, Advocate and he had not submitted adjournment application himself and that petitioner Ahmed Khan was minor, and showed every possible indulgence. The learned counsel for the respondent No.1 also showed utmost grace and every time gave no objection for setting aside ex parte orders and for reopening of the petitioners side with a view that the petitioners may contest the matter on merits, but the petitioners merely dragged the matter for a very long period. There is substance in the contention of Mr. Rehmat Ali Rajput that burden of proving the contention that Mr. Ali Nawaz Ghanghro, Advocate was not engaged by late Abdullah and that petitioner Ahmed Khan was minor lay heavily on the shoulders of the petitioners but they deliberately withheld the best evidence available. They did not call Mr. Ali Nawaz Ghanghro, in evidence and likewise withheld petitioner Ahmed Khan and his father from coming before the Court and deposing about the minority of Ahmed Khan. We are persuaded to agree with the contention of Mr. Rehmat Ali Rajput that instead of producing false and contradictory certificates which belie each other the best course available was to produce Ahmed Khan before the Court, as on production of Ahmed Khan the trial Court could itself observe his age. If he was 7 or 10 or 12 years of age his mere presence before the Court would have been the best evidence for deciding the issue of minority of petitioner Ahmed Khan. The trial Court specifically observed in its order dated 16-9-1987 that the real question of controversy was the age of defendant Ahmed Khan.

25. For the foregoing reasons, we are o the considered view that the trial Court as well as the revisional Court have not committed any illegality or even material irregularity in exercise of jurisdiction under section 12(2), C.P.C. and have proceeded with all care and caution. The petitioners in spite of full opportunity provided to them deliberately withheld the best evidence available to them on both the contentious issues of facts. The learned trial Court as well as the revisional Court have correctly appreciated the evidence brought on record during the proceedings under section 12(2), C.P.C. There is no misreading or non-reading of evidence as alleged by Mr. Mohan Lal, learned counsel for the petitioners. The impugned order of the trial Court and the judgment of the revisional Court is not open to any exception. Constitution petition is without substance and stands dismissed accordingly. M.B.A./A-462/K Petition dismissed.