2005 PLP 1401 (CLC)

The brief facts out of which present writ petition arises are that respondent No.1 filed a suit for specific performance of the agreement to sell dated 10-6-1990 against the petitioner with regard to land in question along with consequential relief in the Court of Civil Judge 1st Class, Samundri, District Faisalabad. The learned trial Court decreed the suit of respondent No.1 ex parte against the petitioner vide judgment and decree dated 30-4-1991. The petitioner being aggrieved filed an application under section 12(2) of C.P.C. in the Court of Civil Judge, Samundri. Respondent No.1 filed reply of the petition. Out of pleadings of the parties, the learned trial framed the following issues:-- (1) Whether the petitioner has got no cause of action and locus standi to file the petition? OPR (2) Whether the petition is not maintainable? OPR (3) Whether the petition is time-barred? OPR (4) Whether the petitioner is estopped by her own conduct to file the petition? OPR (5) Whether the respondent is entitled to special costs? OPR (6) Whether the impugned decree, dated 30-4-1991 is liable to be set aside being result of fraud and misrepresentation? OPA (7) Relief. The learned trial Court accepted the application of the petitioner vide order, dated 25-2-2004. The respondent being aggrieved filed revision petition before the learned Additional District Judge, Samundri, who accepted the same vide impugned order dated 22-2-2005. Hence, the present writ petition.

2. The learned counsel of the petitioner submits that orders of the Courts below are at variance. He further submits that the Revisional Court has reversed the order of the learned trial Court without adverting to the reasoning of the learned trial Court, therefore, the Revisional Court erred in law to accept the revision petition of the respondent. He further submits that the petitioner is a Pardanasheen lady and this fact was considered by the learned trial Court, which was not considered at the time of reversing the findings of learned trial Court by the Revisional Court. He further submits that service of the petitioner was not effected as is evident from the report of Process-Server and findings of learned trial Court, but this fact was not scrutinized and reappraisal in its true perspective by the Revisional Court. He further submits that the Revisional Court passed the order by misreading and non-reading of the record. He further submits that the learned trial Court erred in law to dismiss the application of the petitioner as time-barred; whereas the petitioner has filed the said application within time from the date of knowledge of ex parte decree. He further submits that the order of the Revisional Court is not inconsonance with law laid down by the Superior Courts. He further submits that the respondent failed to produce attesting witnesses of the agreement to sell, therefore, basic ex parte decree is without lawful authority, but this fact was not considered by the Revisional Court. In support of his contention, he relied upon the following judgments: Abdul Rehman v. Shukar Din 1983 CLC 1441; Ali Muhammad v. Muhammad Hayat 1982 SCMR 816; Tanvir Jamshed v. Raja Ghulam Haider 1992 SCMR 917; Mumtaz Bibi and others v. Ghulam Akbar 1995 MLD 1175; Anees Haider v. Additional District Judge, Lahore 2003 CLC 462; Mst. Rasheeda Begum v. Muhammad Yousaf 2002 SCMR 1089; Muhammad v. Mst. Rehman 1998 SCMR 1354 and Allah Dad and others v. Dhuman Khan and others 2005 SCMR 564.

3. I have given my anxious consideration to contention of learned counsel of the petitioner and perused the record.

4. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties: (i) The learned trial Court decreed the suit of the respondent ex parte on 30-4-1991. (ii) The petitioner allegedly came to know about the ex parte decree on 25-11-1994. (iii) The petitioner filed an application under section. 12(2) of C.P.C. on 27-6-1995. In case the aforesaid facts are put in juxtaposition, then the petitioner has not filed the application immediately after receiving the knowledge of ex parte decree. It is settled principle of law that vested right has accrued to the opposite party/respondent, therefore, it is the duty and obligation of the petitioner to explain the delay of each day, which has not been explained by the petitioner in the contents of application which was filed by her under section 12(2) of C.P.C. coupled with the facts that the petitioner has filed power of attorney (ﻮﻛﺎﻠﺖﻨﺎﻤﻪ) in the suit, which was signed by her and her counsel namely Mirza Muhammad Sabir Baig, Advocate to whom the petitioner has given power of attorney, who entered appearance before the Court as A.W.2 and stated that he has filed power of attorney under the direction of the petitioner, and thereafter, the petitioner did not enter appearance. Hence, the statement of learned counsel of the petitioner is not scrutinized by the learned trial Court in its true perspective and accepted and application without proper appreciation of evidence on record; whereas the Revisional Court has reversed the same with cogent reasons after application of mind and after proper appreciation of evidence on record. It is pertinent to mention here that the petitioner has not filed complaint against the said Advocate before the Punjab Bar Council. This fact brings the case of the petitioner in the area that the petitioner is not vigilant about his right as, well as he did not enter appearance in the Court after filing of power' of attorney by her counsel which was duly signed by her. It is better and appropriate to reproduce the operative part of the order of Revisional Court to resolve the controversy between the parties:-- "Arguments heard and record perused. Main stress of learned counsel for the respondent is that the suit filed by Salma Bibi against Barkat Bibi for the specific performance of contract was decree ex parte and Barkat Bibi neither appointed any counsel to appear on her behalf nor she was aware of the proceedings. As against this, version of learned counsel for the petitioner is that the learned trial Court rightly proceeded with the matter, and decreed the petitioner's suit as Barkat Bibi defendant/respondent despite her appearance through her counsel absented herself and case was proceeded ex parte and finally after recording ex parte evidence, case was decreed. This controversy appears to be covered under Issue No.6. Barkat Bibi respondent/petitioner/defendant appeared herself and also produced Mirza Muhammad, Sabir Baig, Advocate as A.W.2, Ch. Sharafat Hussain, Advocate as A.W.3 whereas Ghulam Rasul appeared as A. W.4. A.W.2, Mirza Muhammad Sabir Baig Advocate in his deposition stated that Barkat Bibi appointed him as her counsel and he submitted power of attorney before the Court but she did , not turn up subsequently. During the examination-in-chief A.W.2 Mirza Muhammad Sabir Baig, Advocate categorically stated that he did not write any affidavit. During cross-examination this A.W. again stated that Barkat Bibi appointed him as her counsel and Rs.300 were fixed as fee and Barkat Bibi affixed her thumb-impression on power of attorney and she also directed him to submit power of attorney in the Court. He had further denied the execution of affidavit. It is important to note her that no suggestion was put to this P.W. in order to confront him his assertions either made in examination -in-chief or during the course of cross-examination. Contents of affidavit said to have been sworn in by this A.W. in which he statedly denied the assertion of being engaged counsel of Barkat Bibi, in my humble view is of less value in the presence of his deposition made before the Court under oath. It is also important to note that Mirza Muhammad Sabir Baig, Advocate was to prove the version of Barkat Bibi but he did not support her version while appearing as her witness. Accusation of Barkat Bibi, therefore, did not stand proved. Finding of learned trial Court on, this issue was contrary to the evidence available on the record, particularly that of evidence of A.W.2. Remaining evidence of Barkat Bibi has little bearing on the real controversy in petition under section 12(2) of C.P.C. on 27-6-1995 in which she was seeking quashment of decree, dated 30-4-1991. This shows that petition was filed after four years. No doubt, no period of limitation is provided for filing of petition under section 12(2) of C.P.C., therefore, matter shall be covered by Article 181 of the First Schedule of Limitation Act, 1908 providing period of limitation as three years from the time when right to apply accrues. Admittedly, in the instant matter right to file the petition shall be presumed to be accrued to Barkat Bibi when ex parte decree was passed against her on 30-4-1991. Submission of learned counsel for Barkat Bibi that right to file application shall start after the knowledge of decree is again of no avail to him in the backdrop of the fact that Barkat Bibi came to know about the existence of ex parte decree on 25-11-1994 as per contents of para. 5 of her petition when she approached area Patwari with her husband for further alienation of the disputed land and petition under section 12(2) of C.P.C. has been filed on 8-2-1995 that goes to show that petition was filed after about 2-1/2 months. This period was to be explained with an application for the condonation of delay, but neither each and every day after the knowledge till the filing of the petition has been explained nor any application for the condonation of delay has been filed along with the petition under section 12(2) of C.P.C. There is yet another glaring aspect of the matter which also requires to be mentioned here is that before filing this petition, Barkat Bibi had transferred disputed land to her son but she did not mention this fact in her petition. under section 12(2) of C.P.C. which was admittedly filed after Mutation No.5245 sanctioned on 15-12-1994 through which she transferred the land by way of gift to her son Mahboob Ahmad. Non-mentioning of factual aspect going in the roots of the case is fatal to the bona fides of Barkat Bibi. If she did not remain the owner of the disputed property then she had hardly any locus standi to file petition under section 12(2) of the C.P.C. As regards contention of learned counsel for the respondent that a criminal case was also registered against the petitioner Salma Bibi and she has been challaned with other accused persons it is to be seen that case stood quashed by the Lahore High Court vide order, dated 16-3-1995 passed in Criminal Miscellaneous No.57/Q of 1995. Finding of learned trial Court on issue No.6, therefore, is reversed and is answered in negative. Similarly finding of learned trial Court on issue No.6 is also set aside and is answered in positive. In view of findings on Issues Nos.1, 2 and 4 are also answered in positive." Mere reading of aforesaid paragraph clearly reveals that the Revisional Court has passed the impugned order after considering the reasoning of the learned trial Court and after reappraisal of evidence on record.

5. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunals below while exercising power under Article 199 of the Constitution, as per principle laid down by the Division Bench of this Court and by the Honourable Supreme Court in the following judgments: Board of I.&S.E. Lahore v. M. Musaddaq Naseem PLD 1973 Lah. 600; Syed Azmat Ali Shah v. Chief Settlement Commissioner and others PLD 1964 SC

260. It is also settled principle of law that Constitutional jurisdiction is discretionary in a character, wherein the conduct of the petitioner is very important not to exercise discretion in favour of the petitioner. The conduct of the petitioner as mentioned above is that she engaged counsel, who has filed power of attorney, and thereafter, the petitioner as well as her counsel did not enter appearance before the trial Court, therefore, the learned trial Court had no other alternative except to pass ex parte decree against the petitioner. As mentioned above, the petitioner came to know about the ex parte decree and thereafter, she did not file application under section 12(2) of C.P.C. well in time after knowledge of ex parte decree. The petitioner has gifted the property to her son before filing of application under section 12(2) of C.P.C. The aforesaid facts are also coupled with other ingredients of conduct of the petitioner highlighted by the Revisional Court in paragraph No.5, therefore, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in the following judgments in view of settled principle of law that Constitutional jurisdiction being equitable jurisdiction cannot be exercised in favour of a person, who has come to Court with gross negligence: Mohsin Khan and others v. Chief Settlement Commissioner and others 1969 SCMR 306; Suleman and 4 others v. Board of Revenue, Lahore 1970 SCMR 574; Nawab Syed Raunaq Ali v. Chief Settlement Committee PLD 1973 SC 236; Rana Muhammad Arshad v. Additional Commissioner and others 1998 SCMR 1462; Wall Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106 and G.M. Malik, Chairman, Board v. Province of Punjab and others 1990 CLC 1783. The Revisional Court accepted the revision petition after hearing the arguments of both sides on 22-2-2005. On 7-4-2005, the petitioner has secured certified copy of the impugned order and thereafter, she filed this petition on 28-5-2005, therefore, the petitioner is not entitled to discretionary relief from this Court and this petition is liable to be dismissed on the well-known principle of laches, as per law laid down by the Honourable Supreme Court in the following judgments: Federation of Pakistan and others v. Haji M. Saif Ullah Khan and others PLD 1989 SC 166; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC

304. It is also settled principle of law that each and every case : is to be decided on its own peculiar circumstances and facts, as per principle laid down by the Honourable Supreme Court in Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. The judgment cited by the learned counsel of the petitioner is distinguished on facts and law. In view of what has been discussed above, this writ petition has no merit and the same is dismissed. S.A.K./B-89/L Petition dismissed. ***