2006 PLP 1168 (CLC)

SH. HAKIM ALI, J.

This single order shall govern the fate of C.M. No.1846 of 2005 in Writ Petition No.1486 of 2000/BWP and C.M. No.1847 of 2005 in Writ Petition No.328 of 2004/BWP, as both these C.Ms. have arisen from one and the same judgment and the facts as well as the similar law points are involved therein. The order is being passed in C.M. No.1846 of 2005.

2. A Lot No.10, consisting of 100 Kanals of lands situated in Chak No.15/DNB, Tehsil Yazman, District Bahawalpur was auctioned on 23-5-1984, for Five Years Temporary Cultivation Nazir Ahmad and Abdul Majeed got this lot jointly in equal shares. To get ousted the other co-lessee, from the lot, a long litigation commenced between the parties which had seen many ups and downs before the Revenue Authorities up to the Member Board of Revenue, but ultimately on 18-10-2004, my learned brother Mr. Justice Nazir Ahmad Siddiqui, decided the matter in Writ Petition No.1486 of 2000/BWP filed by Nazir Ahmad v. The Member, Board of Revenue (Colonies), Lahore and the others, along with another Writ Petition No.328 of 2004/BWP filed by legal representatives of Abdul Majeed, co-lessee of the lot against The Province of Punjab and others. According to that judgment both the, bidders were declared joint lessees having one half share each in the above mentioned lot.

3. Still dissatisfied with the long litigation of about 21 years, again a new round of litigation has been commenced by filing two separate petitions under section 12(2) of the C.P.C. in both the writ petitions against the above mentioned judgment dated 18-10-2004 passed by my learned brother Judge in Chamber, on the following grounds: (i) Nazir Ahmad, respondent No.6 was never a resident of Chak No.15/DNB nor cultivator of that Chak, therefore, was not eligible to get the land on lease for that purpose, vide report of Scrutiny Committee, prepared in the year 1986. (ii) Fake Khasragirdawaris and allotment' orders were produced by Nazir Ahmad to show his eligibility to get the above noted lands. (iii) Government was not made party to the writ petition of Nazir Ahmad. The learned A.A.-G. neither could represent the Revenue Authorities, respondents Nos.1 to 5 of the writ petitions, nor these authorities were summoned through any notice or summon. (iv) No written reply was asked for in the writ petitions to be submitted by the Board of Revenue and other Revenue Authorities. (v) The petitions under section 12(2) of the C.P.C. can be competently filed in this Court. Learned counsel has also referred the following rulings:-- (1) Sikandar Ali and others v. Muhammad Sharif and others YLR 2003 2686 (Karachi); (2) Mst. Kubra Begum and others v. Mst. Shad Begum and others 1993 SCMR 2096; (3) WAPDA v. Ghulam Hussain 2000 CLC 530 (Lahore); (4) Javadan Cement Limited v. Government of Sindh through Secretary Land Utilization Department, Karachi and 3 others 2000 CLC 1119 (Karachi); (5) Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662; (6) Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171.

4. After considering the lengthy arguments of the learned counsel, perusal of the petitions, each expanding to 26 pages, and consulting the other record appended with the petition, I have come to the following conclusions: (a) Nazir Ahmad, against whom the complaint is now being made, regarding his eligibility to obtain the lease, this objection was duly raised before the Revenue Authorities, who had taken into consideration all these objections while deciding the case of Nazir Ahmad. Therefore, this question was very much in the knowledge of all the Revenue Authorities and even before the learned Judge in Chamber. This is not a fresh and new factual aspect or matter which was not in view before the Revenue Authorities and the learned Judge in Chamber. Therefore, this question cannot be allowed to be agitated again now in these petitions which have been filed under section 12(2) of the C.P.C. This Court cannot allow the petitions to be treated in the shape of appeals and to decide these petitions as such by sitting over the judgment of learned brother Judge of this Court, Therefore, petitions under section 12(2) of the C.P.C. are, therefore, misconceived and not maintainable in this Court. (b) Whether Nazir Ahmad had obtained the lease on the basis of forged Khasragirdawaris or fake allotment orders or fabricated documents of cultivation, this objection also cannot be taken into consideration in this Court at this stage, as factual controversy is involved in all such matters, which could be resolved before the Revenue Authorities. It may be noted here that this question was even raised and agitated before the Revenue Authorities but ultimately had not found favour before my learned brother. This has also not been found correct by some of the Revenue Authorities. If this question has not been specifically and clearly raised and decided by my learned brother Judge, even then it would be considered to have been adjudicated upon and it would be considered that this objection was not accepted by the learned C Judge. The petitioners could file proceedings against the impugned judgment before the Honourable Supreme Court of Pakistan, if so advised or had desired. These petitions under section 12(2) of the C.P.C. cannot be held competent, in this Court. (c) As regards the representation of learned A.A.-G. for the learned Member, Board of Revenue and other Revenue Authorities, the learned A.A.-G. has got power under Order XXII of the C.P.C. to accept service, appear, answer and represent not only the D Government but Public Officers who had acted in their official capacities. It cannot be denied that learned Member, Board of Revenue or other Revenue Authorities, who were seized of the case were acting as Government Servants and Public Officers in their official capacities. Therefore, representation through and by learned A.A.-G. had not required any transmission of summons, notices and filing of power of attorneys. It may be mentioned here that the aforesaid authorities of the Government have not shown any dissatisfaction with the impugned judgment. They have not filed any appeal or any such-like petition. The petitioners, therefore, cannot act and file any petition on their behalf. They have got no locus standi on their behalf to file such petitions or represent them through these petitions, or to make any complaint on behalf of them. (d) The judgments referred to by the learned counsel are not applicable to the facts and circumstances of the case. In Sikandar Ali and others v. Muhammad Sharif and others 2003 YLR 2686 (Karachi) words "final order" as used in section 12(2), C.P.C. were discussed and explained, while in Mst. Kubra Begum and others v. Mst. Shad Begum and others 1993 SCMR 2096 application filed under section 12(2) of the C.P.C. was dismissed as barred by limitation; which order was set aside by Honourable Supreme Court, as Article 181 of the Limitation Act was held applicable, which had provided limitation of 3 years. In WAPDA v. Ghulam Hussain 2000 CLC 530 (Lahore) question of substituted service was raised which facts of the case had got no nexus with this case. In Javadan Cement Limited v. Government of Sindh through Secretary Land Utilization Department, Karachi and 3 others ,000 CLC 1119 (Karachi) new purchasers were not impleaded. So fraud was held to have been committed under section 12(2) of the C.P.C. In Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 it was held that the persons, who were not party to the suit, could file petition under section 12(2) of the C.P.C., which question is not involved in the instant case. In Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 when leave was not granted by the Honourable Supreme Court, it was held that in such cases, the petition under section 12(2) of the C.P.C. could be moved before the High Court. All the above noted decisions referred to by the learned counsel have no relevance to the point in issue, with the facts and circumstances of this case.

5. Therefore, I do not consider it a fit case for being admitted for hearing. Both the petitions are dismissed in limine. F.B./L-4/L?????????????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.