2007 PLP 928 (YLR)

SH. HAKIM ALI, J.

Muhammad Ramzan son of Qasim had purchased agricultural land measuring 227 Kanals, 6 Marlas, situated in Mauza Luddan, Tehsil Hasilpur from Naseer Muhammad Khan through Mutation No.223 dated 24-11-1965. The aforementioned sale was pre-empted by one Muhammad Muzaffar Khan and a long litigation ensued thereafter. The relevant facts for the decision of this petition had commenced when the suit was decreed by learned Additional District Judge on 24-9-1978 in Appeal and R.S.A. No.813 of 1978/Lhr was filed by Muhammad Ramzan, vendee/defendant in this Court and it was withdrawn by Ahmad Yar, one of the sons of Muhammad Ramzan and attorney of other legal heirs of Muhammad Ramzan on 29-1-1992. Aggrieved from this withdrawal and dismissal of appeal a review application was filed by Muhammad Siddique and others, legal heirs of Muhammad Ramzan, which was dismissed on 23-11-2005. Dissatisfied with this order Civil Petition No.117-L/2006 (Muhammad Yar, deceased and others v. Muhammad Muzaffar Khan and others) was filed before the Hon'ble Supreme Court of Pakistan, which was dismissed on 26-1-2006 by the Hon'ble apex Court. Taking clue for the other proceedings, the instant petition under section 12(2) of the C.P.C. has been filed by Muhammad Yar and others (legal Heirs of Muhammad Ramzan, deceased) with the contention that Ahmad Yar, one of the sons of Muhammad Ramzan, deceased, vendee had acted unauthorizedly when he had withdrawn R.S.A. No.813 of 1978/.Lhr on 29-1-1992. As per learned counsel, the power of attorney in favour of Ahmad Yar was cancelled through cancellation deed executed on 29-1-1992 and registered on 30-1-L

992. Therefore, instant petition is competent against the dismissal order dated 29-1-1992 passed on the basis of withdrawal of appeal. As per learned counsel, as Ahmad Yar had committed fraud by withdrawing the aforementioned appeal, therefore, petition may be entertained and order dated 29-1-1992 may be set aside.

2. After considering the arguments and from perusal of the record, I have not been able to agree with the submissions of the learned counsel on the following grounds:-- (i) It is an admitted fact that Ahmad Yar was conferred attorney power by other legal heirs of Muhammad Ramzan and had withdrawn the appeal on 29-1-1992. It is also an admitted fact that cancellation deed was allegedly executed on 29-1-1992 and registered on 30-1-1992. Muhammad Siddique and others, petitioners had the remedy to file an application before this Court on 29-1-1992 as the appeal was being withdrawn by Ahmad Yar but they had not chosen this remedy and had got cancellation of power to attorney deed, which was registered on 30-1-1992 after withdrawal of appeal on 29-1-1992. In other words, on 29-1-1992 Ahmad Yar was attorney and competent to withdraw the appeal. Therefore, his withdrawal cannot be considered to be a fraud committed with the Court within the compass of provision of section 12(2) of the C.P.C. (ii) The petitioners had got knowledge of this order dated 29-1-1992 well in time, but they had opted not to file petition under section 12(2) of the C.P.C. against the order dated 29-1-1992 within three years as prescribed by Article 181 of the Limitation Act, and had been pursuing the other remedies till the dismissal of their' appeal from Hon'ble Supreme Court of Pakistan. Therefore, they had spent a long period of 1992 to 2-12-2006 (date of filing of present petition) without any good cause. This inordinate delayed period of fourteen years cannot be considered to be a period having been spent with bona fide intention or in good faith. The petitioners are not entitled for condonation of delay of this period' under section 14 of the Limitation Act, because nothing is considered to have been done with good faith which act is not performed with care and caution. Accordingly, I do not consider this petition to be based on sound reasons on factual as well as on legal footings. Therefore, this petition is dismissed in limine. H.B.T./M-40/L Petition dismissed.