2004 PLP 740 (SCMR)

RANA BHAGWANDAS, J.

Petitioner seeks leave to appeal against Sindh High Court order dated 27-2-2003 passed in High Court Appeal No.314 of 2002 affirming the judgment passed by a learned Single Judge of the High Court on an application under section 12(2), C.P.C. moved by respondent No.2-Aquil Usman Dhaduk impugning the validity of judgment and decree obtained against him ex parte.

2. Facts in nutshell appear to be that petitioner filed a suit for declaration, permanent injunction and cancellation of documents in relation to the property in suit on the original side of the High Court against three private defendants and three official defendants. It appears that on the statement of her counsel proceedings were dropped on 28-8-2001 against defendants Nos.1 and 2 whereas defendants Nos.3, 4 and 6 were already ex parte. An ex parte decree was, thus, obtained and possession of the property was handed over to her through Nazir on the direction of the Court. On coming to know about the ex parte decree, respondent No.2, who was not impleaded as party to the suit, moved an application under section 12(2), C.P.C. for recall of the decree on the ground that the petitioner had practised fraud upon the Court and suppressed material facts. In the said application he claimed that he was rightful owner of the property by virtue of a registered sale-deed date 19-11-1997 and purchased from respondent No.1, Mst. Maryam. The application was contested by the petitioner and learned Single Judge, upon consideration of rival contentions of the parties, allowed the same and set aside ex parte judgment and decree. Being aggrieved, petitioner filed High Court Appeal No.314 of 2002 before a Division Bench of the High Court, which has been dismissed through the impugned order, against which leave to appeal is claimed.

3. We have heard Mr. Mir Muhammad Shaikh, learned Advocate Supreme Court for the petitioner and scanned the record with his assistance. There is no dispute that respondent No.2 holds a registered sale-deed executed by respondent No.1 as far back as 19-11-1997 and, though the petitioner prayed for cancellation of such sale-deed in favour of respondent No.1 in respect of the property; she did not challenge the transaction of sale by latter in favour of respondent No.2, who was not impleaded as party to the suit seeking permanent injunction against respondent No.1, two other private defendants and three official defendants. Upon a careful consideration of the material on record, learned Single Judge as well as the Division Bench came to the conclusion that respondent No.2 had brought on record adequate material to show his ownership rights in the suit property, therefore, even if this fact was not deliberately suppressed by the petitioner, it would not change the position that the decree was obtained by misrepresentation of facts.

4. Having considered the facts of the case in totality and examining the case of the petitioner from every angle, we are of the considered view that by setting aside the decree passed in favour of the petitioner, learned Judges of the High Court did not commit any illegality or material irregularity warranting interference by this Court in the exercise of Constitutional jurisdiction. We are firmly of the view that no substantial question of law of public importance is raised before us for grant of leave. Suffice it to observe, the petitioner shall have adequate opportunity to establish her case at the trial of the suit, which will be, decided on its own merits.

5. Petition is accordingly dismissed and leave to appeal refused. S.A.K./N-5/S Leave refused.