1984 PLP 206 (MLD)

Akhtar Shabbir, A.A-G. for Respondents. Date of hearing: 22nd January, 1984. This writ petition is directed against order dated 8-6-1983 passed by the learned Additional District Judge, Lahore whereby he dismissed petitioner's revision petition and maintained order, dated 6-1-1983 of the learned Civil Judge, Lahore whereby accepted application under subsection (2) of section 12 of the Civil Procedure Code moved by the respondents and set aside ex parte decree, dated 20-11-1975 obtained by the petitioners.

2. The relevant facts of the case are that Dost Muhammad and Gulandar Khan petitioners were residing in Beriwala Ahata, Egerton Road, Lahore. They alongwith many other occupants of that Ahata were ejected there-from and were accommodated in Lahore Township Scheme. It appears that Dost Muhammad Petitioner No.2 was allotted quarter No.93, Block No.8, Sector 'B' Lahore Township Scheme. Dost Muhammad and Gulandar Khan petitioners, as asserted by them, were residing together .in Beriwala Ahata. They occupied the disputed plot which, according to the respondents, is a part of children park, in the scheme. According to the petitioners they were allotted the plot in question but they, however did not bring on the record any allotment order in respect thereof. They being in unauthorised occupation of the same were issued notices under section 5 of the Government Lands and Buildings (Recovery of Possession) Ordinance, 1966. They challenged the aforesaid notices by way of declaratory suit in which they claimed that the plot in dispute was allotted to them as an alternative accommodation in 1968. The respondents in the written statement held them entitled to the allotment of residential accommodation but pleaded they had already been provided alternative accommodation. The notices were withdrawn and the suit was dismissed on 29-1-1973. During the pendency of the suit notices were again issued and the same were challenged by another suit by the petitioners in which they obtained ex parte decree on 20-11-1975. The respondents moved application under subsection (2) of section 12 of the Civil Procedure Code alleging therein that the ex parte decree was obtained by misrepresentation and fraud. The learned trial Court allowed the application vide order dated 6-1-1983 and a revision against the same failed on 8-6-1983 before the learned Additional District Judge, Lahore, hence this petition.

3. Learned counsel for the petitioners contended that the respondents admitted in the written statement that the petitioners were entitled to alternative accommodation and they were allotted plot in dispute in 1968. It was asserted that it does not lie in their mouth at this stage to say that the plot in dispute was not allotted to them.

4. Learned A.A-G., on the other hand, submitted that the plot in dispute was never allotted to them because it being a part of children park, could not have been allotted to any one, for residential purposes. The petitioners are in unauthorised occupation of the same and the notices issued for, their ejectment therefrom, were valid. The ex parte decree obtained by the petitioner was based on misrepresentation because no title deed in respect of the disputed property was placed on the record. It is further argued that the learned lower Courts rightly set aside the decree obtained by the petitioners exparte.

5. I have considered the contentions raised by learned counsel for the parties. The Assistant Advocate-General produced original file and asserted that Dost Muhammad petitioner No. 2 had already been allotted Quarter No.93, Block 8, of Sector 'B' in the Township Scheme. Petitioner No.1 had no independent status but was residing with him. The afore-mentioned quarter was provided as alternative accommodation and it was for that reason, that in the written statement, it was specifically stated that alternative accommodation had been provided to them. The petitioners could not produce allotment order or any other document to show that the plot in dispute was ever allotted to them by the respondents. The perusal of the plan shows that the plot in dispute is a part of children park and could not have been allotted to them for residential purposes. The learned Civil Judge who had passed ex parte decree in favour of the petitioners had no jurisdiction to do so particularly when there was nothing on the record to substantiate the claim of the petitioners to the property in dispute.

6. I find no merit in this petition and the same is therefore, dismissed. However, it is observed that the contesting-respondents after holding inquiry in the matter if find that petitioner No.1 was independently entitled to alternative accommodation or that he was entitled to joint allotment of the quarter No.93 referred to above, may redress his grievance in accordance with law.

7. There shall be no order as to costs. M. Y. H. Petition dismissed.