2020 PLP 1753 (MLD)

AHMAD ALI, J.

Petitioner through this Civil Revision has called in question the vires of Judgment dated 21.05.2018 of the learned District Judge Charsadda whereby the appeal of petitioner against Judgment/Order dated 20.07.2017 of the learned Civil Judge-III, Charsadda, was dismissed.

2. A brief account of the present case is that the petitioner filed a suit against Mst. Gul Chamanda widow of Sher Rehman for specific performance of the agreement dated 22.07.2012 in respect of the house, detailed in the headnote of plaint. Defendant filed her cognovits and the said suit stood decreed in ex-parte vide ex-parte order/Decree dated 20.06.2015. Respondents Nos. 1 and 2 challenged the ex-parte decree through an application under section 12(2), C.P.C. on the ground that the decreed house was belonging to Sher Rehman who died issueless leaving behind one widow Mst. Gul Chamanda and respondents (then applicants). Therefore, widow could only inherit 1/4th share out of the legacy of Sher Rehman, as such, she was not competent to sold the entire house. The said application was dismissed vide order dated 05.04.2017 for the sole reason that while passing ex-parte decree, only the share of Mst. Gul Chamanda, the defendant, was decreed and the said decree do not affect the rights of applicants of application under section 12(2), C.P.C. Thereafter on 06.05.2017, the petitioner/decree holder filed a review petition for the expunction of remarks relating rights of respondents Nos.1 and

2. The review petition was dismissed vide order dated 20.07.2017 by the learned Civil Judge-III Charsadda and the appeal of petitioner was also dismissed vide Judgment dated 21.05.2018; hence this civil revision against concurrent findings of the learned courts below.

3. I have heard arguments of the learned counsel for parties and have gone through the record with their valuable assistance.

4. It is the matter of record that while passing ex-parte decree dated 20.06.2015 in favour of the petitioner and against defendant, Mst. Gul Chamanda, the learned trial Court had specifically decreed the share of Mst. Gul Chamanda in the suit house. The relevant excerpt from the ex-parte order is reproduced here under for ready reference: "Therefore, in view of evidence so led by the plaintiff suit of plaintiff filed against defendant stands decreed to the extent of the share of defendant Mst. Gul Chamanda in the suit house measuring 01 kanal and 10 marlas without boundaries fully detailed in the plaint which she receives from her deceased husband Sher Rehman in the suit house as the legacy left by him."

5. Thereafter, while deciding the fate of application under section 12(2), C.P.C. vide order dated 05.04.2017, the learned trial Court referred the above quoted para of ex-parte order, which petitioner wants to be expunged. Admittedly, the petitioner had not filed any appeal for the modification of the said ex-parte order, and the said order has now attained finality. Therefore, if the para wherein reference of supra quoted order is made, is expunged from the order dated 05.04.2017 even then the same will not affect the observation of Court recorded in the ex-parte order dated 20.06.2015.

6. Both the Courts below have concurrently dismissed the review petition of petitioner after giving due consideration to pros and cons of the case. Besides, the concurrent findings of facts recorded by the Courts below do not suffer from any illegality, irregularity, infirmity or perversity. The petition in hand is therefore, dismissed. Parties to bear their own cost. SA/142/P Petition dismissed.