1990 PLP 920 (MLD)

AJMAL MIAN, CJ.

This petition is directed against the order dated 5-9-1984, passed by the learned IVth Additional District Judge, Karachi, in Civil Revision Application No.155/1983, allowing the revision of respondent No.1 against the order dated 18-10-1983 dismissing her, objections in Execution Application No.8/1983.

2. The brief facts leading to the filing of the above petition are that the present petitioners filed Suit No.413/1971 against respondents Nos.2 and 3 for possession of plot of land, bearing No.392, measuring 160 square yards, situated in Sector 11-G, North Karachi Township. The above suit was resisted by the above respondents Nos.2 and 3 and inter alia it was pleaded that they were factually in possession of Plot No.551 which was allotted by respondents Nos.3 and 4 alongwith their mother, respondent No.1. The suit proceeded and eventually it was decreed on 10-9-1975. Against the above judgment/decree, respondents No.2 and 3 filed Civil Appeal No.214/1975 which was dismissed on 15-7-1976. Then respondents Nos.2 and 3 filed Civil Revision No.107/1982, which was also dismissed by a learned Single Judge of this Court, by a judgment dated 8-11-1982. After the above round of litigations, the petitioners filed aforesaid Execution Application No.8/1983. In the above Execution Application, respondent No.1 filed objections averring therein that she was co-allottee of Plot No.551 with respondents Nos.2 and 3 and that she was not impleaded as a party to the suit and, therefore, the judgment and decree was not binding. However, the above objections were dismissed by the learned Executing Court by its order dated 18-10-1983 thereupon, respondent No.1 filed aforesaid Civil Revision Application No.155/1983 which had been allowed. The above petitioners, being aggrieved by the above order, have filed the present petition.

3. In support of the above petition, Mr. A.K.M. Hashmi, learned counsel for the petitioners, has vehemently urged as follows:- (i) That since the petitioners were not claiming the possession of Plot No.551, respondent No.1 had no cause of action for filing objections. (ii) That in any case her interest was represented by respondent No.2 who was the son of respondent No.1.

4. Adverting to the first above submission that since the petitioners were not claiming the possession of Plot No.551, respondent No.1 had no cause of action for filing objections, it may be observed that from the appellate order passed in Civil Appeal No.214 of 1975 by learned IIIrd Additional District Judge, Karachi, it seems that one of the controversies in the suit was whether the respondents Nos.2 and 3 got the number of the plot changed from 392 to 551 and that they had un-authorisedly occupied above Plot No.392 in collusion with respondents Nos.4 and

5. In other words, one of the issues was whether respondents Nos.2 and 3 were in possession of the plot for which suit was filed. Even if we were to accept the contention of the learned counsel for the petitioners that respondents No.1, 2 and 3 were the allottees of above Plot 1 No.551, but the fact remains that they were claiming the possession of the plot which was in their possession and which they claim as Plot No.551. The fact that respondent No.1 was a co-allottee was disclosed by respondents No.2 and 3 in paragraph 4 of their written statement and, therefore, it was necessary that the petitioners should have impleaded respondent No.1 as well. The learned Additional District Judge in the impugned order has allowed the objections on the above ground. However, the learned counsel for the petitioners as per his above second contention has vehemently contended that since respondent No.2 was the son of respondent No.1, she was effectively represented before the trial Court, appellate Court and revisional Court in the proceedings arising out of the Suit No.413 of 1971. In furtherance of his above submission, he has relied upon the case of Mst. Khurshid Begum etc. v. Mst. Ghulam Kubra etc., reported in 1982 S C M R

90. In the above case, the Hon'ble Supreme Court allowed the appeal of the landlady and set aside the objections of an adult member of a tenant family which were allowed on the ground that he was not impleaded in the ejectment proceedings. It was observed by the Hon'ble Supreme Court that since all the members of the family were living together including the adult member who had come forward with the objections after the passing of the ejectment order, his objections were not bona fide and, therefore, should not have been allowed by the High Court. The facts of the above case are distinguishable as there is no relationship inter se between the parties as of landlord and tenant and secondly, the case of the petitioners is that the respondents were trespassers over their plot.

5. Another question which requires consideration in the present case is, as I to whether in exercise of Constitutional jurisdiction we can set aside the impugned order as being without jurisdiction. The view found favour with the 1 learned Additional District Judge is a view which could have been taken on the basis of the admitted facts and, therefore, it is not a case for exercise of Constitutional jurisdiction. The petition is dismissed but there will be no order as to costs. M.B.A./M-1005/K Petition dismissed