1994 PLP 1683 (CLC)

(4) Whether the suit of the defendants is not maintainable in its present form? OPD (5) Whether the suit of the defendants is time‑barred? OPP. (6) Whether the suit of the defendants is bad for non‑joinder of necessary parties? OPD. (7) Whether the plaintiff is entitled to discretionary relief? OPD. (8) Whether the plaintiff has not come to the Court with clean hands? OPD. (9) Whether defendants are entitled to special costs? OPD. (10) Whether the plaintiff has got no cause of action? OPD. (11) Relief."

2. Thereafter the learned trial Court recorded the evidence of the parties and after hearing the arguments dismissed the suit of the petitioner and simultaneously decreed the suit of the respondents vide judgment and decree dated 23‑4‑1992. The petitioner filed an appeal against the decree in his suit while revision in the suit by the respondents. The learned Addl. District Judge heard the same together and vide single judgment dated 18‑5‑1993 dismissed the same. Now present revision petition.

3. At the very outset it was pointed to the learned counsel for the petitioner that the paper book is not complete a copies of material documents like Exhs.D‑1 and D‑2 have not‑ been placed on record. The learned counsel for the petitioner submitted that the revision can very well be argued in the absence of this material. So I permitted him to address the arguments. The requirement of Section 115, C.P.C. is that the petitioner shall furnish in support of the petition copies of pleadings, documents and orders of the Courts below. If any material is withheld, the Court would be justified to presume that had these documents been produced, the same would have gone against the petitioner.

4. The sold argument on behalf of the petitioner was that the Courts below wrongly and illegally consolidated both the suits. It is submitted that since no appeal is provided in a suit under section 9 of the Specific Relief Act, therefore, the same should not have been consolidated with the regular suit. In this behalf, reliance is placed on the case of Mst. Arifa Begum v. Khulque Muhammad Naqvi (PLD 1969 Karachi 193).

5. I have given my anxious considerations to the arguments of the learned counsel for the petitioner and gone through the precedent case, in which the trial Court refused to consolidate the two suits as it was resisted by the respondents. The High Court approved the order of the trial Court but in the present case the petitioner never raised a little finger as to the consolidation of the suits by the trial Court. In my humble view, it will be only H irregularity in procedure which would be fully cured by section 99, C.P.C. The same reads as under:‑‑ "

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court."

6. It is admitted position on record that the petitioner never objected to the suits being tried together. This fact alone is sufficient to rebut the argument because it would be deemed to have been waived. In this behalf a reference can be made to the case of Mahant Ramdhan Puri and others v. Chaudhary Lachmi Narain and others (AIR 1937 Privy Concil 42).

7. Now coming to the prejudice. The learned counsel for the petitioner submitted that since in the suit of the respondents the petitioner could not file appeal, therefore, this has caused prejudice to the petitioner. I fail to comprehend the prejudice caused to the petitioner. The remedy was not only available to him but the same was availed of both against the dismissal of his suit as well as against decree for possession against him. No prejudice had been caused to the petitioner, therefore, the present case is fully covered by section 99, C.P.C. I am fortified in my view by the judgment of Supreme Court in the cases of Ch. Sir Muhammad Zafarullah Khan v. Custodian of Evacuee Property (PLD 1964 SC 865) and Alam Khan and others v. Pir Ghulam Nabi Shah and Company (1992 SCMR 2375).

8. The consolidation of the suits at the best is akin to the misjoinder of causes of action. It is clear from the provisions of Order II, Rule 3, C.P.C. that all objections as to misjoinder shall be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement unless, of course, the ground of objection has arisen subsequently The objection not so taken shall be deemed to have been waived. It is clear that the plaintiff did not resist the consolidation of the two suits. It is too late in the day to make any grievance of consolidation of the two suits in civil revision. The procedural defect stood cured by provisions of Section 99, C.P.C. Reference can be made to the case of Alam Khan (Supra). It is, however, made clear that this Court is not holding that the two suits must be consolidated.

9. It is interesting to note that before the District Judge petitioner filed an appeal against the decree in his own suit while revision petition in the suit of the respondents but now he has filed only one revision; meaning thereby that he is challenging only the judgments and decrees of the Courts below in his suit but has prayed for acceptance of the revision petition and setting aside judgment and decrees of the Courts below and remand of the suits for fresh decision in accordance with law.

10. There is no scope for second revision petition in view of Section 115 (3), C.P.C., therefore, this petition is incompetent to the extent of decree in suit for possession by the respondents. The petitioner if genuinely aggrieved, should have challenged the findings in the suit of the respondents through a Constitutional petition.

11. The upshot of the above discussion is that there is no merit in this revision petition. The same is dismissed in limine. H.B.T/M‑1535/L Revision dismissed.