2006 PLP 2311 (YLR)

C.Ms. Nos.151-C and 153-C of 2006 SHEIKH AZMAT SAEED, J.--This application under section 12(2) of the Code of Civil Procedure directed against the judgment dated 23-2-1997 passed by this Court on a revision petition arising out of a suit for pre-emption in which the present applicants were not a party.

2. Brief facts leading to the filing of the present applications are that respondent No.1 filed a suit for pre-emption against the respondents Nos.2 to 11 in respect of the property in dispute. The said suit was filed on 25-1-1969. It was contested and on the divergent pleadings of the parties, issues were framed and evidence was led. Eventually the Civil Judge seized of the matter decreed the suit in favour of the respondent No.1 vide judgment dated 14-6-1977. Aggrieved respondents Nos.2 to 11 filed an appeal before the District Judge which failed to find favour and was dismissed vide the appellate judgment and decree dated 25-6-1980. Whereafter the revision petition in question i.e. Civil Revision No.1343-D of 1980 was filed before this Court. The parties were heard and the revision petition was dismissed vide judgment dated 23-2-1997 by this Court. It is the said judgment of this Court which has been challenged through the instant application under section 12(2) of the Code of Civil Procedure.

3. The present applicants claim to have purchased the property from respondents Nos.2 to 11 after the institution of the suit for pre-emption before the trial Court.

4. The respondents Nos.2 to 11 challenged the judgment of this Court dated 23-2-1997 referred to above before the honourable Supreme Court of Pakistan through C.P.L.A. No.937-L of 1997 which was dismissed by the apex Court vide its judgment dated 5th April, 1999.

5. The present applicants entered the fray by filing an application under section 12(2) of the C.P.C. on 14-12-2000 before the District Judge, Lahore. It was entrusted to a Civil Judge. In the said application it was claimed that the present applicants acquired the knowledge of the judgments and decrees in October, 2000. The learned Civil Judge vide his order dated 12-5-2005 returned the application under section 12(2) of the C.P.C. filed by the present applicants holding that he had no jurisdiction to adjudicate upon the matter. A review petition was filed by the present applicants which was also dismissed. An appeal has been filed against the said order which I am informed is still pending adjudication before an Additional District Judge, Lahore. It appears that an objection petition was also filed by the applicants before the executing Court which was dismissed on 14-12-2002. The applicants are also stated to have filed a suit for declaration regarding the suit property which also was dismissed by the trial Court on 13-12-2005. It appears that the petitioner also invoked the jurisdiction of the honourable Supreme Court through an application purportedly seeking recall of its judgment dated 5-4-1999 which was not entertained and returned on 18-6-2005.

6. It is in the above background that the present application under section 12(2) of the C.P.C. has been filed before this Court which is being vehemently contested by the respondents who have filed reply thereto.

7. It is contended by the learned counsel for the applicants that the impugned order of this Court is a result of fraud and collusion inter se the respondents. It is further contended that the applicants were not impleaded in the proceedings. Adds that the suit property was urban property, hence not subject to pre-emption.

8. The learned counsel for the respondents have controverted the contentions raised on behalf of the applicants. It is further contended that the application is barred by limitation. The learned counsel for the respondents further contended that the applicants claim to have acquired interest in the land in question during the pendency of the suit, hence, in view of doctrine of lis pendens as enunciated in section 52 of the Transfer of Property Act are bound by all judgments and decrees and orders passed by this Court and the honourable Supreme Court. It was further contended that the issues purported to be raised through the present application had been considered and adjudicated upon both by this Court and subsequently by the honourable Supreme Court of Pakistan. The counsel adds that the present application is mala fide and is a dilatory tactic to deprive the respondents of the fruits of their decree which was initially passed in their favour as far back as 1977 and finally the matter was decided in favour of respondents by the august Supreme Court in 1999.

9. In rebuttal the learned counsel for the applicants states that the application is accompanied by a petition under section 5 of the Limitation Act. Hence, the delay, if any, in the filing of the present application may be condoned as the applicants were bona fide pursuing their remedy before a wrong forum.

10. The learned counsel for the applicants in support of his contentions has placed reliance upon the judgments reported as Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others (1994 SCMR 782), Karachi Electric Supply Corporation Limited v. Lawari and 4 others (PLD 2000 SC 94), Abid Kamal v. Muddassar Mustafa and others (2000 SCMR 900) and Iqbal v. Mst. Jainan Bibi (1991 CLC 553) and the learned counsel for the respondents in support of their contentions have placed reliance upon the judgments reported as Government of Sindh and another v. Ch. Fazal Muhammad and others (PLD 1991 SC 197), Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Heirs (2004 SCMR 578), Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050) and Zahid Ahmad v. Deputy Director Adjudication and 2 others (PLD 2006 Karachi 252).

11. It is a matter of record that a suit for possession through pre-emption was filed by respondent No.1 against respondents Nos.2 to

11. It is apparent from the record and not disputed by the present applicants that at the time of filing of the aforesaid suit the present applicants had no interest in the said property. It is equally a matter of record that the said suit was contested and decided on merits in favour of respondent No.1. The defendants in the said suit unsuccessfully challenged the judgment and decree by way of first appeal, thereafter by a revision before this Court and finally also invoked the jurisdiction of the honourable Supreme Court of Pakistan. All remedies of appeal, revision and petition before the honourable Supreme Court were availed of and exhausted by respondents Nos.2 to 11 without success. All the judgments and orders are on merits and after contest by both the parties thereto. The applicants who acquired interest in the suit property pendente lite are bound by the judgment and decrees of the Courts below and the order of this Court in the revision petition as well as the judgment of the honourable Supreme Court of Pakistan in view of the principle of lis pendens.

12. Of course in exceptional cases there can be a possibility of fraud and collusion to the prejudice of a third party who is not impleaded in the proceedings and acquired interest pendente lite. The learned counsel for the applicants has been unable to point out any act or omission on the record of the respondents Nos.2 to 11 even vaguely suggesting any such fraud or collusion. A mere bald assertion in this behalf in the absence of material particulars and unsupported by any material on the record is not sufficient.

13. The contention of the applicants that the suit property was urban property, hence not subject to pre-emption can also not form the basis of setting aside the order of this Court under section 12(2), C.P.C. in the instant case, as such a plea was specifically taken and decided in the litigation inter se the respondents including by the honourable Supreme Court where the factum of the transfer of parts and parcels of the suit property to the present applicants was also brought to the notice of the honourable Supreme Court. Thus no case of fraud and misrepresentation in terms of section 12(2), C.P.C. has been made out by the applicants.

14. The objection to limitation is also well taken by the respondents. Admittedly the applicants claim to have knowledge of the proceedings in October, 2000 while this present application had been filed in 2006 well beyond the period of three years described for such an application in view of Article 181 of the Limitation Act. The only ground for condonation mentioned in the accompanying application are as follows:- "

5. That the petitioners, being aggrieved by the decree, obtained by fraud, misrepresentation, by concealing true facts; has been prosecuting the matter in hand with due diligence before another forum which was not competent to hear and adjudicate upon the petition of the petitioners and this period which has been spelt bona fide may graciously be excluded from the three years prescribed limitation for this petition.

6. That it is well-settled law and practice of the Superior Courts that the application under section 12(2) C.P.C. should not have been dismissed on the ground of limitation as where decree was obtained by fraud, question of limitation for setting aside the same, would not arise, as also the entire case was not examined in its correct perspective which resulted in grave miscarriage of justice. If decree passed without hearing and notice to the party whose presence was essential before the Court the question of limitation would not arise at all."

15. The contention is not tenable in law as the period of limitation for an application under section 12(2), C.P.C. at best commences from the date of knowledge of the judgments and orders sought to be challenged as has been held by the apex Court in the judgment reported as Government of Sindh and another v. Ch. 1 Fazal Muhammad and another (PLD 1991 SC 197). The applicants are not entitled to benefit of section 12 of the Limitation Act as ignorance of settled law is no ground of condonation of delay. The judgments relied upon by the learned counsel for the applicants are not applicable to the facts of the case and dolt; not support his contentions.

16. In view of the above, these applications are without any merit and are dismissed. M.H./K-31/L?????????????????????????????????????????????????????????????????????????? Application dismissed.