1995 PLP 1344 (CLC)

1. Granted subject to all just exceptions.

2. This appeal has been instituted challenging the orders passed by a learned Single Judge in Chambers in J.M. No. 47 of 1994 moved by the present appellants under section 12(2), C.P.C. Briefly the facts relevant for the purpose of this appeal are that the present respondent No.1 had instituted Suit No. 606 of 1992 against the present respondents Nos. 2 and 3 for declaration, permanent injunction and possession. Though the suit was titled as above but the reliefs sought in the suit are as under: (1) Declaration that the defendant No.1 is a trespasser on suit plot of land bearing Survey No. 67 (old No. 1‑A) Nai Malir, Deh Dih, Taluka and District Karachi East and measuring two acres and has no authority in law to enter and remain on the plot or undertake any sort of work therein which is calculated to injure the future possibility of the land so far as the plaintiff is concerned, (2) Mandatory injunction to restrain the defendant No.1 their servants, officers and person or persons claiming under or through them from entering upon the suit land and to give up possession of the suit plot to the plaintiff alone and not to create third party interest etc. therein. (3) Permanent injunction against the defendant No.1 their servants, officers and persons or person acting under or through them from interfering in any manner whatsoever with the peaceful possession/ enjoyment of the said plot of land by the plaintiff. (4) Direction to the defendant No. 1 to immediately remove the illegal Notice Board placed on the suit plot by it. (5) Such better or particular relief as this Hon'ble Court deems fit in the circumstances of the case:' This suit was decreed in terms of the above relief by the respondent No.1. Being aggrieved the present appellants have preferred application under section 12(2), C.P.C. seeking the judgment and decree passed in the suit to be set aside on the ground that the same was obtained by misrepresentation of the facts. The learned Single Judge after hearing the learned counsel for applicant was pleased to dismiss the application by the impugned order and, therefore, this appeal. We have heard the learned counsel for appellants. The contention of the learned counsel is that in case an application as the present one is moved it is appropriate for the Court to issue notice to other side and hold an enquiry. He has placed reliance on the case of Town Committee, Sujawal v. Hakim Murtaza Khan (1989 MLD 1955). He has stated that there are a number of other cases of superior Courts wherein the above proposition has been maintained. Before reverting to the case‑law cited by the learned counsel we would like to point out at the very outset that this judgment passed in the earlier suit is inter partes and the declaration granted is under section 42 of the Specific Relief Act which by virtue of the provisions of section 43 of the Specific Relief Act would not be binding on persons not party to the suit. The declaration which is granted in the suit by this Court is to the effect that the defendant No. 1 in the Suit (KDA) is a trespasser and all the four injunctions which are granted against only the KDA by way of consequential relief. The said relief does not affect the rights of the present appellants, if any. It is admitted position that the present appellant had already instituted a suit wherein the right of easement or the right to maintain their pipeline through the land in dispute is claimed. In these circumstances, this decree would not affect the right of the present appellants if such rights exist in law. With these observations, we find no substance in this appeal, which is dismissed summarily. AA./N‑547/K Appeal dismissed.