2012 PLP 662 (MLD)

AMIN-UD-DIN KHAN, J.

Respondents Nos.1 and 2 are formal respondents. Learned A.A.-G. on behalf of respondents Nos.3 to 5, whereas respondents Nos.7 and 8 were served through affixation of notice because they refused to receive notices whereas respondent No.9 was personally served. No one appeared on behalf of respondents Nos.7 to 9, therefore, they were proceeded against ex parte.

2. Through this writ petition, the petitioners have challenged the order of learned Additional District Judge, Rahimyarkhan dated 4-2-2002 whereby the revision petition was dismissed, the revision was filed against the order dated 23-10-2000 passed by the learned Civil Judge, Rahimyarkhan whereby he accepted the application under section 12(2), C.P.C. filed by Mst. Fakhri Begum.

3. The brief facts of the case are that one Shujaat Ali was allotted land measuring 96 kanals fully described in the head-note of the plaint situated in Cheque No. 49-P Tehsil and District Rahimyarkhan; that one Fakhri Begum filed a Mukhbari application and this land was cancelled from the name of Shujaat Ali vide order passed by the Chief Settlement Commissioner on 30-7-1976; before that order the petitioners purchased this land through Mutation No. 92 sanctioned on 29-6-1970, therefore, on the cancellation, the petitioner was constrained to file a civil suit in the court of competent jurisdiction on 22-7-1976. This suit was decreed on 21-12-1978 in their favour. Fakhri Begum allegedly filed an application under section 12(2), C.P.C. challenging the validity of judgment and decree dated 21-12-1978, Through this application dated 21-4-1987, the written reply was filed by the petitioners wherein they have stated that Fakhri Begum has died a long ago; this application has been fictitiously filed; and that issue No.1 was also framed.

4. The learned trial Court accepted the application and set aside the judgment and decree passed on 21-12-1978. Feeling aggrieved the petitioners challenged this order through the revision petition before the learned Additional District Judge who vide order dated 4-2-2002 dismissed the revision petition.

5. The main contentions for the learned counsel for the petitioners are that this application was absolutely time barred; that Fakhri Begum had died since long before filing the application and allegedly this application was filed by one Muhammad Iqbal claiming himself to be the attorney of one Abdul Haleem who was stated to be the attorney of Fakhri Begum; contends that no original power of attorney of Abdul Haleem was presented; that power of attorney P-1 on the basis of which this application was filed does not bear the signatures and name of the witnesses; that the attorney cannot further delegate the powers; that Fakhri Begum never appeared in any Court.

6. The learned Assistant Advocate General on behalf of respondents Nos.3 to 5 states that the matter relates between the private party and no interest of government is involved in this litigation.

7. I have seen the record. The suit was decreed in the year 1978 and the application under section 12(2), C.P.C. filed by Fakhri Begum on 21-4-1987 was clearly time barred. Fakhri Begum never appeared in the court despite clear assertion of the respondents in the reply that she is no more in this world and she has died long ago. This application has been filed fictitiously. It is further noted that Exh.P-1 on the basis of which the application was filed and all the proceedings were conducted were defective one because the alleged attorney of Fakhri Begum, Abdul Haleem further delegated the powers to said Muhammad Iqbal. The original power of attorney of Fakhri Begum in favour of Abdul Haleem never came on record to show the link of said Muhammad Iqbal with Fakhri Begum. Even otherwise under the law the attorney cannot further delegate his powers to any other person. In this view of the matter, both the learned Courts below fell in error while recording their findings against the settled principle of law. Even otherwise the findings are against the record, therefore, I accept this writ petition and set aside the orders passed by the Civil Judge on 23-10-2000 and that of the revisional court dated 4-2-2002. Resultantly the decree in favour of the petitioner on 21-12-1978 is restored. K.M.Z./A-181/L Petition accepted.