2005 PLP 175 (YLR)

SABIHUDDIN AHMED, J.

1 and 2 granted. 3 &

4. Through Misc. No.998 of 2003 the respondent No.3 has sought review of our final order dated 25-2-2003 and through Misc. No.1006 of 2003 he has prayed that pending hearing of the said application the petitioner may be temporarily restrained from ejecting the respondent No.3. In a nutshell it may be observed that the petitioner had claimed possessory/ownership rights over the disputed land and the construction raised thereon through a declaratory suit. The suit was contested by the respondents Nos.1 and 2 right up to the level of the Honourable Supreme Court and there were consistent pronouncements to the effect that while the question of petitioner's ownership of land was doubtful it was clear that the structure raised on the land only belong to them. Accordingly the respondents were restrained from dispossessing the petitioner from the building in their possession. It subsequently transpired that the respondent No.1 which had contested the civil suit as well as subsequent proceedings right up to the level of the Honourable Supreme Court proceeded to execute the "lease" in favour of the respondent No.3 for an area measuring about 200 sq. yards bearing the same plot number i.e. 1896 in New Kumharwarah Liayari Quarters, Karachi. Upon coming to know of such lease in favour of the respondent No.3, the petitioner questioned the same through this petition under Article 199 of the Constitution. Notice to respondents was duly served and appearance was entered on behalf of respondent No.3 as well. However, after having filed a counter affidavit neither respondent No.3 nor his learned counsel appeared on 28-1-2003 and again on 25-2-2003 when the matter was fixed for regular hearing. Accordingly after hearing the learned counsel for the petitioner and the Legal Advisor of respondent No.2 we announced judgment, declaring the lease in favour of respondent No.3 to be null and void and directing the Nazim-i-Ala, City District Government to take appropriate disciplinary measures against persons responsible for the same. Mr. Muhammad Zahid Khan, learned counsel who now represents the respondent No.3 contends that the area of about 200 sq. yards upon which no construction had been raised by the petitioner or respondents Nos.1 and 2 themselves had been duly leased out to the respondent No.3 and the rights of aforesaid respondent that extent should have at least been protected. With profound respects we are constrained to mention that this question was neither raised before us by any of the parties at the hearing nor the respective counter-affidavit/comments filed by the respondent to indicate such to be their respective cases. We have carefully gone through the elaborate counter-affidavit filed on behalf of the respondent No.3 and it does not appear to suggest any where that notwithstanding the acknowledged possessory rights of the petitioner, the aforesaid respondent ever contended that the lease was operative in respect of part of the area of the aforesaid plot. With due respect we may observe that the possession taken up by Mr. Muhammad Zahid Khan now might have been in the interest of the respondent No.3 but the factual assertion seems to be an after-thought and are not supported by the record. At the same time we may observe that even the respondents Nos.1 and 2 did not suggest that the area leased out to the respondent No.3 was different from the one covered by the judgments of Courts in proceedings to which the said respondent was party. For these reasons we are of the view that such plea cannot be entertained at review stage. Moreover, it needs to be kept in view that the review jurisdiction has to be exercised within the strict parameter of Order XLVII, C.P.C. and failure of a party to appear on a date of hearing is no ground for review of the judgment passed in his absence. Mr. Muhammad Zahid Khan invited us to examine the merits of the case afresh, but we are afraid that in doing so we might be laying down a rule that a litigant may choose not to defend proceedings initiated against him despite due service and thereafter entered appearance only in a case where prejudicial decision on merits has already been taken. Indeed such could not be the intention of the law. These applications are therefore, dismissed. H.B.T./A-135/K Applications dismissed.