1999 PLP 655 (MLD)

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246 ref. Abdul Hameed Samo for Petitioners

1. Exemption is allowed but subject to all just exceptions.

2. By this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioners have challenged a judgment dated 15-12-1996 passed by Vth Additional District Judge, Karachi (South) whereby revision filed by the petitioners challenging the order of the original Court dismissing the application moved under section 12(2), C.P.C. read with Order 23, rule 47 and Order 21, rule 26 was dismissed on merits. In the application under section 12(2), C.P.C. it appears that the defendants, who had contested the suit but lost, has challenged the judgment and decree on the ground of fraud. However, application under section 12(2), C.P.C. was decided against them and it was held that no fraud was proved. Again in revision, the Vth Additional Sessions Judge, Karachi (South) vide his impugned order dated 15-12-1996 came to the conclusion that the suit was contested by the defendants/petitioners and they had filed their written statements and led evidence. It was held by the learned Vth Additional District Judge, Karachi (South) that any point of fraud was not even pointed out. Under these circumstances, the revision was dismissed. In this Constitution petition not only the order passed by the Vth Additional District Judge, Karachi (South) has been challenged but the earlier orders passed by the original Court on the application under section 12(2), C.P.C. have also been challenged. The learned counsel for the petitioners frankly admitted that no appeal was filed against the judgment of the original Court although the remedy in shape of appeal was available but due to some error on part of the counsel appearing at that time for the petitioners an application under section 12(2), C.P.C. only was moved which was decided against the petitioners. We have heard the learned counsel for the petitioners in detail The learned counsel has failed to show us as to how the Constitutional jurisdiction of this Court can be invoked when the remedies were available to the petitioners under the hierarchy of Civil Courts and have also been availed by the petitioners. Apart from that, we do not find that the Courts below have acted in excess or lack of jurisdiction, or passed any perverse or mala fide orders. The learned counsel however insisted that the two impugned orders were 'wrong' as far as the rights of the petitioners were concerned. On this point we are supported by the decision in the case of Ch Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore (PLD 1996 SC page 246) wherein the Supreme' Court has held under similar circumstances that filing of Constitutional petition was improper. Under these circumstances, we do not find that this Court is called upon to interfere in the judgments of the two Civil Courts passed by them in their jurisdiction under Civil Procedure Code. Consequently, this petition is dismissed in limine. Q.M.H./S-137/K Petition dismissed