1994 PLP 1850 (CLC)

Mehmoodul Hassan for Petitioner. Applicant Saleemuddin Qureshi has moved this application (Miscellaneous No.964/92) under section 12(2) of C.P.C. read with section 151, C.P.C. and under Article 199 of the Constitution of Pakistan, challenging the judgment delivered by a D.B. of this Court on 28‑11‑1989 in C.P. No. 46/84 and in other similar petitions. Said Constitution petition was filed by petitioner Muhammad Masood Faridi challenging cancellation of residential Plot No. 1‑2‑N/Block‑6, P.E.C.H.S. He also challenged a notification issued by the Government of Sindh by which an Administrator was appointed to take over P.E.C.H.S. Under the impugned judgment dated 28‑11‑1989 delivered by a D.B. consisting of Mr. Justice Ajmal Mian (as he then was) and myself, the view taken in case of Hashmatullah v. Sindh Cooperative Housing Authority and others (C.P. No. D‑934/83 decided on 30‑5‑1989) to the effect that the Sindh Cooperative Housing Authority had no power to amend the bye‑laws of a Society was followed: In respect of cancellation of plot of the petitioner and others, the Division Bench followed the consent orders passed in C.P. No. D‑972 of 1984 and C.P. No. D‑980 and directed the Administrator P.E.C.H.S. to decide, after hearing the petitioner, the question as to whether petitioner's case was covered by the recommendation of the Enquiry Committee and whether any action was warranted, keeping in view the facts of the case and the principles of natural justice. Said judgment was delivered on 28‑11‑89 whereas present application (Miscellaneous No. 964/92) was filed on 29‑2‑1992. According to section 12(2) of C.P.C. where a person challenges the validity of a judgment; decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit. For challenging the judgment dated 28‑11‑1989 applicant Saleemuddin Oureshi is required to make out that said judgment has been obtained by fraud or misrepresentation or it is without jurisdiction. ‑ Mr. Muhammad Kamal Shaikh, learned counsel for the applicant argued that the plot whose cancellation was challenged by the petitioner, was an amenity plot and the petitioner had withheld from this Court hearing said petition, the fact that the plot in question was an amenity and it could not be allotted to an individual. In respect of locus standi of applicant Saleemuddin Qureshi to file this application, his counsel argued that he was allottee of a plot in P.E.C.H.S. and as resident of the area he could challenge an amenity plot being allotted to an individual. It was contended that had this Court been aware about the plot in question being amenity plot, the matter would not have been remanded to the Administrator, P.E.C.H.S. Mr. Syed Mahmoodul Hassan, learned counsel for petitioner Muhammad Masood Faridi challenged locus standi of the applicant to file the application under section 12(2) of C.P.C. It was contended that the applicant was not member of P.E.C.H.S. and as he was not a Government servant he was not qualified to be member of said Society. It was also argued that the petitioner was not concerned with the plot in question being amenity plot, before its allotment to him. Under the judgment dated 28‑11‑1989, the D.B. of this Court had not restored allotment in favour of the petitioner. The D.B. of this Court had simply remanded the matter to the Administrator of P.E.C.H.S. for deciding a question after hearing the petitioner. The question whether the plot in question was an amenity plot, or it was a residential plot, could not have been determined in the Constitutional Forum. In my view the applicant has not been able to make out, that the petitioner had obtained the judgment dated 28‑11‑89 by fraud or by misrepresentation. The jurisdiction of this Court to pass the judgment dated 28‑11‑1989 was not challenged at any stage of the proceedings. In view of above discussion this application (Miscellaneous 964/92) stands dismissed with costs alongwith Miscellaneous No. 2299/92 which has become infructuous. A short order in these terms was passed on 30‑8‑1992 and these are reasons for the same. H.B.T./M‑1935/K Application dismissed.