P L D 1981 Supreme Court 349 (PLP)

KARAM ELAHEE CHAUHAN, J.‑(t) Mst. Shamim.Firdaus and (ii) Adnan Afzal (plaintiffs) filed a civil suit on 21st May, 1964, for a declaration that they were the wife and son respectively of Major Sher Afzal (now Lt: Colonel) (defendant). After a protracted trial of about 5 years, the suit was decreed by the learned Civil Judge on 22nd September, 1969. The first and second appeal of the defendant were dismissed by the learned Additional District Judge and the High Court on 9th October, 1970 and 8th March, 1972, respectively.

2. The defendant filed an appeal in this Court by special leave being C. A. No. 162/72, which was dismissed on 2nd September, 1980, and the find ing of fact regarding the relationship of the plaintiffs as pleaded in their plaint, was maintained after a detailed discussion and analysis of the relevant evidence and the lengthy arguments of the learned counsel for the parties.

3. The defendant, (Sher Afzal) then filed a review application being C. R. 88‑R/80 which was dismissed on 2nd June, 1981.

4. It appears that after the dismissal of the above‑mentioned appeal, defendant Sher Afzal, put forward his (second) wife Mst. Khalida Sher Afzal who has filed the present Civil Miscellaneous Application No. C. M. P. 5/81 in Civil Review Petition No. 88‑R/80 for being impleaded as a party in the main appeal or to be more precise, as was argued, in the review application, both of which as stated earlier at the moment stand dismissed.

5. From what has been explained above, it is evident, that today there is pending no case, in this Court, and as a matter of fact not even the review in which she prays to be impleaded as a party. This is apart from the fact that even otherwise she has no locus standi to file such an application in dis‑between Sher Afzal and his first wife and a son from the wedlock. Addi tion of a party in this context is misconcieved and will really tantamount to restart another trial of the same matter over again, which it is obvious, cannot be allowed.

6. Another thing to be noted is that when the main suit was filed, as pleaded in the present application and as its apparent tenor shows, Mst. Khalida Sher Afzal had already come into the wedlock of defendant Sher Afzal and fully knew about the institution of the suit, and not only that, but also had throughout remained in touch with it and helped her husband in contesting the points in controversy between the plaintiffs and the defendant. During all that period of 16 years when the case remained pending in various Courts she did not make any application for being added a party, and put in the present application only when the litigation between the plaintiffs and the defendant had come to an end. The present application in these circum stances, does not merit any serious consideration, inasmuch as, it lacks bona fides and also suffers from want of locus standi inordinate laches and delay. The applicant, who argued this case herself, submitted that the purpose of her applying for being made a party at this stage of the case, was, that she would like to help her husband by leading additional evidence in the form of what she has termed as a "genital test" which according to her would be helpful in resolving the issue of the paternity of plaintiff No. 2 in the suit. Here it may be pointed out that this very prayer was contained in the Review petition filed by Sher Afzal and we fail to understand as to why he has put forward his second wife to repeat that prayer by this application. We do not think that there is any justification for reopening the case which stands concluded by the judgment and order of this Court dated 9th February, 1980 based on direct evidence oral and documentary etc. The applicant does no point out any error in our previous judgment and its main stress is on claim till a sort of retrial or re‑opening of the case. If such like applications were entertained in this form and forum, from such disgruntled persons as the applicant is, at such a stage as has been mentioned above, then there will never be an end or finality to any litigation, because, after a case is concluded by the judgment and order of this Court, such like applications will start pouring in abundance by the relatives of the defendant one after the other. It may be pointed out that somewhat similar or analogous requests of the defendant for additional evidence were rejected in the main appeal. See paragraph 47 of the reported judgment in Major Sher Afzal v. Shamim Firdaus and another (PLD1980SC229) at page 279 which reads as follows :‑ "Before parting with this. case I may state that the defendant‑appellant during arguments and particularly while closing his address again, prayed for a remand of the case for leading additional evidence and for recall and also for further cross‑examination of some witnesses. This, it is obvious, is an attempt to prolong an already exceptionally prolonged litigation which started over sixteen years back and which the defendant wishes to drag on for the rest of the life of the parties or for a consider able part thereof. The effort seems to misuse the process of law for an ulterior motive. It is a well‑contested case on the part of the defendant as will be evident from its bulky record and various types of points and pleas and evidence led from his side. There is no justification. whatever to allow the reopening of the case at this late and if we may now add, there is no justification to repeat the same prayer, this time through the applicant vii. the second wife of the defendant whom he has put forward with an ulterior motive to subject the respondents to an unwarranted harassment, and to keep them involved in litigation and in this way deprive them of the fruits of the decree which they obtained after the onerous litigation of sixteen years.

6. Taking up the application under adjudication as itself being one for review, it does not fulfill the well‑known legal requirements and the grounds or causes on which a review can be claimed from this Court. Its close perusal shows that the applicant right from the beginning remained closely in touch with the whole litigation in which her husband lost the case: he virtually wants, a retrial or in her own words (DOBAR TAFTISH) and inquiry. In the application she has referred to the letters which the defendant had been writing to his first wife and states that there were simply "KATCHI UMAR KAY AFSANAY "that Adnan Afzal is not a son of Sher Afzal : there is allegedly some difference in his date of birth ; that Mst. Shamim Firdaus is not wife of Sher Afzal and had been adopting and using different description and nomenclatures at different time and if an inquiry is ordered about that lady, then her past, present and future, all will come out like a bright day. All such pleas and arguments have already been dealt with in the main judgment and there is no warrant to reopen or retry the same issues at the behest of the second wife of Sher Afzal.

7. Looked at from whatever angle this application is both incompetent, misconceived and as well as without any merit. It is dismissed hereby.

3. A. H. Petition dismissed.