2009 PLP 1609 (YLR)

ABDUL SATTAR GORAYA, J.

Petitioners by means of this Constitutional petition have challenged the order dated 5-11-1995 passed by the learned Additional District Judge, Rahim Yar Khan at Khanpur whereby he set aside the order dated 10-5-1992 passed by the learned Civil Judge, Khanpur in dismissing the application brought under section 12(2), C.P.C.

2. Facts in brief are that Khawaja Ghulam Farid, predecessor-in-interest of respondents Nos. 1 to 5 entered into agreement for sale of the agricultural land measuring 16-Kanals situated in the revenue estate of Mouza Hasilpur Tehsil Khanpur and after having received the sale price, executed the agreement of sale on 26-4-1981 in favour of Jam Fazil, predecessor-in-interest of the petitioners. Said Khawaja Ghulam Farid, during his lifetime, resiled from the commitment and after his death, his predecessors-in-interest also refused to get the sale-deed registered. Sher Muhammad and 5 others, legal heirs of Jam Fazal, instituted suit for specific performance of agreement to sell dated 26-4-1981 against' Mst. Aeysha Bibi, Muhammad Abdullah, Mst. Amina Bibi and Mst. Azra Bibi on the ground that the predecessor-in-interest of the defendants Khawaja Ghulam Farid agreed to sell his agricultural land comprising 16 Kanals in accordance with the description given in the plaint. It was averred that Rs.35,000 had been accepted as consideration of the suit land but the defendant was not executing sale deed in favour of the petitioners. It is asserted that the plaintiffs-suitors remained always willing to perform their part of contract but the respondents refused to transfer the suit land in their favour.

3. When the Court reached at a conclusion that the respondents were avoiding to accept the notice, substituted service was directed to be made and citation in the newspaper was flashed to enforce the attendance. A copy of the newspaper in which the said citation appeared was dispatched to the respondents on the given address but no one turned up and vide order dated 18-9-1984, they were proceeded against ex parte. On 25-11-1984, ex parte evidence was recorded in the suit and on 14-2-1985 ex parte decree was passed in favour of the petitioners. Out of the total heirs of the deceased (i) Mst. Aeysha Bibi (ii) Mst. Shams Bibi and (iii) Mst. Amina Bibi filed an application for setting aside the ex parte decree on 24-11-1985. In the application, they pleased that 10/12 days ago, they came to know that ex parte decree has been passed against them. Plea put forward by the respondents/defendants was that they gained knowledge through their counsel when they had gone to appear in suit titled, "Mst. Chanan Khatoon v. Khawaja Abdul Karim etc." pending in the Civil Court. Petitioners resisted the said application. Divergent stance taken by both the parties resulted into framing of the following issues:-- (1) Whether the petition is in time? OPP (2) Whether there are sufficient grounds for setting aside ex parte decree dated 14-2-1985?OPP (3) Relief. In spite of number of opportunities given, the evidence was not produced. Resultantly, application for setting-aside of ex parte decree in terms of Order IX rule 13, C.P.C. was dismissed in default on 17-12-1987 on which date none appeared. From the perusal of the record, it appears that the respondents reconciled with the decision taken in the petition and did not challenge it any further. At any stage of the proceedings, no one came forward to get the miscellaneous application brought under Order IX rule 13, C.P.C. restored and instead another application was instituted under section 12(2), C.P.C. by which again they sought setting aside of the ex parte decree dated 19-2-1985. In paragraph No.3 of the application, the source again was disclosed the same which was mentioned in application brought under Order IX rule 13, C.P.C. that they gained knowledge only through the counsel when they had gone to attend the Civil Court in a case titled, "Mst. Chanan Khatoon v. Khawaja Abdul Karim etc."

4. Learned counsel for the petitioners submits that the second application brought under section 12(2), C.P.C. was barred by law and the same was not competent. Learned counsel for the respondents came out with the plea and addressed arguments with full emphasis that after the revisional jurisdiction, the order passed by the revisional Court cannot be assailed in writ jurisdiction and the petition on its face value is incompetent. It was further argued that judgment of the Learned Additional District Judge was rich in detail and while passing the judgment, he has discussed each and every aspect of the case.

5. Heard. Record perused with the able assistance of the learned counsel for both the parties.

6. This is stark reality that the ex parte decree in the case was passed on 14-9-1985. In the application seeking to set aside ex parte decree, applicants pleaded that they gained knowledge through their counsel when they had gone to attend the Court in suit titled, "Mst. Chanan Khatoon v. Khawaja Abdul Karim etc." This application was also dismissed on 17-12-1987; whereafter the respondents have been enjoying profound slumber and consciously they have been sitting in the state of dormancy. On 15-11-1989, they had chosen to move an application under section 12(2), C.P.C. seeking setting aside of the ex parte decree. No fraud or misrepresentation in specific terms was alleged. This arrangement was made to cover up the limitation. The same reason was mentioned in paragraph No. 3 of the miscellaneous application under section 12(2) which was embodied in application brought on 24-11-1985 that they gained knowledge through their counsel. In any event, the position, therefore, which emerges is that at both occasions, the petition was barred by time and they had knowledge of passing of the ex parte decree. This necessarily appears to be a case of conscious inactivity and by no stretch of imagination, in the given situation, the delay in filing the petition could be condoned, especially when both the applications were couched in vague generalization.

7. On maintainability of the petition under section 12(2), C.P.C., the apex Court has too settled the proposition of law to admit any debate that after the remedy was availed under Order IX rule 13, C.P.C. the subsequent or second application on the same subject before the same Court under section 12(2) is barred. In fact, the respondents had the remedies: firstly, to file application under Order IX rule 13, C.P.C.; secondly, application under section 96(6), C.P.C.; thirdly, petition seeking review under section 114 read with Order XLVII and; fourthly, a petition under section 12(2), C.P.C. In the case in hand, the remedy brought under Order IX rule 13, C.P.C. was availed and without getting the said order of dismissal in default set aside, the subsequent or second application on the same subject-matter, under section 12(2) was incompetent. The apex Court in Mst. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 concluded the issue:-- "Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redressal of his grievance. Firstly, an application under Order IX, Rule 13, C.P.C.; secondly, an appeal from the ex parte decree under section 96(2), C.P.C.; a petition for review under section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by section 12(2), C.P.C. Here, the petitioner has exhausted her remedies by filing an application under Order IX, Rule 13, C.P.C. and, therefore, on the same ground she cannot be permitted to re-agitate the same issue by means of a fresh petition under section 12(2), C . P. C ." In Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300, the same view was reaffirmed:-- "It may not be out of place to mention here that provisions under section 12(2), C.P.C. were never intended to be a duplication of proceedings provided for in Order IX, Rule 13, C.P.C. and there was no lawful justification for filing the same. In this regard we are fortified by the dictum as laid down in case titled Ghulam Sarwar v. Muhammad Sarwar 1987 SCMR 1440."

8. Learned counsel for the respondents laid much emphasis on the point that after the revisional jurisdiction, the remedy through the Constitutional petition before this Court cannot be availed. While relying on Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, he argued that the Constitutional petition is meant fundamentally to foster justice and where the Tribunal of a limited jurisdiction had a power to decide it rightly or wrongly, the decision cannot be interfered within Constitutional jurisdiction. Also refers to Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 to contend that after the exercise of revisional jurisdiction by the learned Additional District Judge, the Constitutional remedy was not available. The argument has no force. In Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 it was held that the Court had jurisdiction to decide the matter rightly and not wrongly and in case, where principally there is violation of law or the order is running beyond the scope of statutory rules or the law applicable, the interference can be made by this Court in Constitutional jurisdiction. The principle laid down in Muhammad Khan's case 1991 SCMR 970, in facts and circumstances of the case, was different. In the case mentioned supra, the controversy had arisen out of an application seeking amendment under Order VI, rule 17, C.P.C. and when the matter reached before the apex Court, it was held that the fragmentary proceedings should never be challenged before High Court or before the Supreme Court because fundamentally it tends to cause delay in disposal of the main suits. Here the controversy stands on a different pedestal. The case in hand had been finally decided through. ex parte decree and sufficient material is available on the record to reach at conclusion that in both the applications, one brought under Order IX rule 13, C.P.C. and the other under section 12(2) way back in the year, 1989, explanation has been furnished in the two petitions lodged on a different occasion that they gained knowledge on one day through the lawyer when they established contact with him in connection with suit titled, "Mst. Chanan Khatoon v. Khawaja Abdul Karim and others.". Application in terms of Order IX, Rule 13, C.P.C. was moved on 24-11-1985 whereas the application under section 12(2) was moved on 11-5-1989 on the basis of that knowledge. There are strong reasons to believe that if that be the position and explanation in, two petitions separately brought is the same, it can safely be held that they had knowledge of the ex parte decree but the respondents either have been enjoying profound slumber or sitting in the state of dormancy. Looked at from whatever angle, at both occasions on the basis of knowledge also, both the petitions are barred by time. Respondent defendants cannot be permitted to touch the merits and demerits of the case until they cross the hurdle of limitation and the maintainability of the petition. Findings recorded by the learned Civil Judge vide his order dated 10-5-1992 are rich in detail. Learned Additional District Judge while passing the impugned judgment dated 5-11-1995 did not give a conscious 'thought to the important question of law and facts involved in this case and in passing the order, in fact, out stepped the limit of his jurisdiction. Invocation of Constitutional jurisdiction after the order passed by the Learned Additional District Judge in revision is permissible and the ouster is not a rule of universal application. Interference is permissible in appropriate cases like the present one.

9. For what has been stated above, I have come to the inescapable conclusion that the impugned order dated 5-11-1995 passed by the learned Additional District Judge, Rahim Yar Khan is without jurisdiction, without lawful authority and of no legal effect and it is declared accordingly. However, in view of the facts and circumstances of the case and in particular, the question of law involved, parties are left to bear their own costs. S.A.K./S-63/L Petition accepted.