2001 PLP 490 (CLC)

Malik Ghulam Shabbir for Respondent. Date of hearing: 19th June, 2000. The instant civil revision is directed against the judgment and, decree, dated 2‑4‑1998 passed by learned Additional District Judge, Jhelum, whereby he reversed the ex parte judgment and decree, dated 7‑3‑1995 passed by the learned trial Court dismissing the suit of the plaintiff/ respondent against the defendants/petitioners.

2. Briefly stated the facts are that the plaintiff/respondent filed a suit for possession claiming himself to be owner of the suit property on the basis of a declaratory decree, dated 17‑11‑1990. He further asserted that the decree, dated 17‑11‑1990 was challenged by Muhammad Rafique (predecessor‑in‑interest of the present defendants/petitioners) through an application under section 12(2), C.P.C. which was dismissed on 2‑3‑1992. A revision petition filed against the said order of dismissal, was returned to him on 20‑4‑1994 for presenting the same before a proper forum. However, as Muhammad Rafique (predecessor‑in‑interest of defendants/petitioners) did not agitate the matter any further, the decree, dated 17‑11‑1990 attained finality. The suit filed by the plaintiff/respondent was, however, dismissed vide ex parte judgment, dated 7‑3‑1995 passed by the trial Court. The plaintiff/respondent challenged the said ex pane decree, dated 7‑3‑1995 which was consequently, set aside by the Appellate Court vide judgment and decree, dated 2‑4‑1998. The defendants/petitioners have felt aggrieved of the said judgment and decree, dated 2‑4‑1998 and filed this revision petition.

3. Arguments have been heard. Record perused.

4. Contentions of the learned counsel for the dependants/petitioners is that as Muhammad Amin was not owner of the suit property so the decree. dated 17‑11‑1990 passed in favour of the plaintiff/respondent has no legal sanctity, that even otherwise the so‑called judgment and decree, dated 7‑3‑1995 was an ex parte one, as such, had no legal force; that had the matter been decided on merits by the trial Court, they would have agitated their claim as incorporated in an application under section 12(2), C.P.C.; that as such, the impugned judgment and decree. dated 2‑4‑1998 of the Appellate Court be set aside and the suit be remanded to the trial Court for its decision on merits.

5. Conversely, the impugned judgment and decree, dated 2‑4‑1998 has been supported by the learned counsel for the plaintiff/respondent. He submits that the instant revision petition is hopelessly time‑barred as the same has been filed after lapse of sixteen months whereas a revision petition can only be filed within a period of ninety days. He next argued that the grounds taken in the instant revision petition are the same which were taken in the application under section 12(2), C.P.C. and were repelled vide order, dated 2‑3‑1992. He next argued that as the judgment dated 17‑11‑1990 has attained finality, so the trial Court was not justified in disregarding the said judgment and decree while passing the ex parte judgment, dated 7‑3‑1995.

6. Admittedly the plaintiff/respondent obtained a decree for declaration regarding the suit property in a suit filed against Muhammad Rafique (predecessor‑in‑interest of the present defendants/petitioners). The said decree was assailed by Muhammad Rafique through an application under section 12(2), C.P.C. but it failed as is evident from the order, dated 2‑3‑1992. This order, dated 2‑3‑1992 was again challenged by Muhammad Rafique by filing a revision petition which was returned to him on 20‑2‑1994 for presenting it before a competent forum. Admittedly, Muhammad Rafique (predecessor‑in‑interest of the defendants/petitioners) did not agitate the matter anv further after the return of the revision petition and as such, the, judgment and decree, dated 17‑11‑1990 attained finality, It is on the basis of this judgment and decree, dated 17‑11‑1990 that the plaintiff/respondent filed a suit for possession which was dismissed by the trial .Court vide ex parte judgment, dated 7‑3‑1995. The Appellate Court has rightly set aside the ex parte judgment, dated 7‑3‑1995 as the trial Court could not sit over the judgment and decree, dated 17‑11‑1990 which could only be set aside by a Court of competent jurisdiction. As the judgment, dated 17‑11‑1990 declaring the respondent/plaintiff to be owner of the disputed property still holds field so the trial Court was not justified to pass the ex parte judgment, dated 7‑3‑1995 dismissing the suit of the plaintiff/respondent. The Appellate Court has rightly set aside the said ex parte judgment vide its impugned judgment and decree, dated 2‑4‑1998. The impugned judgment does not suffer from any illegality or misreading of evidence. So, there is no force "this revision petition and the same is hereby dismissed. Q.M.H./M.A.K./S-100/L Revision dismissed.