2013 PLP 1222 (MLD)

KHALID MEHMOOD, J.

The petitioner through the instant constitutional petition has sought indulgence of this Court to declare (a) the order of Additional District Judge-VIII, Peshawar dated 5-11-2010 allowing amendment in petition under section 12(2), C.P.C. as illegal, without lawful authority and of no legal effect; (b) to declare the stay of execution of decree dated 11-10-2004, upheld up to the Supreme Court as illegal and to put the petitioner into possession of the subject house, (c) to declare the proceedings in 12(2), C.P.C. petitions as illegal and (d) to award penal costs to the petitioner along with the compensatory costs.

2. Brief and precise facts of the case are that the petitioner/plaintiff filed suit for declaration against the respondent that property in question was owned by her husband and on his death, it devolved upon her. Validity of the registered sale deed dated 18-11-1991 in favour of respondent purporting to have been executed by the plaintiff's husband was also challenged. The suit was decreed by the trial Court vide judgment dated 11-10-2004 with the finding that execution of the said sale deed and passing of sale consideration had not been proved. It was upheld up to the level of the apex Court.

3. Counsel for the petitioner was aggrieved that in spite of the fact that in previous order of the learned trial Court vide its order Hujra was excluded from the lis as the same was not subject matter in the previous litigation. After the said deletion, respondent once again moved application for amendment of the application which was allowed by the Courts below which is utter violation of the previous order of the trial Court.

4. Counsel for the respondent referred to the order sheet dated 29-11-2010 vide which the petitioner had received cost of Rs.10,000 which was imposed in the impugned order wherein respondent was allowed to amend his application on the payment of said cost. He further argued that respondent had submitted amended application as per direction of the Court and replication has also been filed by the petitioner, Furthermore, partial evidence has been recorded by the trial Court and case is yet to be concluded and face its logical end. Hence, this petition ' has become infructuous.

5. Arguments of the learned counsel for the parties heard and record of the case perused.

6. After hearing lengthy arguments of both the learned counsel for the parties, counsel for the petitioner has referred to so many orders/judgments of the Court even the judgment of the apex Court and after close of the chapter, during the execution proceedings, the objection petition which was filed by Fazal Hussain judgment debtor has also come to the logical end, the application so moved under section 12(2), C.P.C. through which the close chapter has been reopened which require to bury the application in the initial inception but in spite of the fact petitioner has been dragged into frivolous litigation ignoring the previous judgments and orders of the Court. Counsel for the petitioner was unable to rebut the plea of respondent that petitioner had received cost of Rs.10,000 in consequence of the impugned judgment and due to estoppel, how petitioner can re-agitate the matter before this court. It is also pertinent to note that petitioner has also participated in the proceedings by filing the replication and partial evidence has also been recorded in consequence of the impugned order which has been acted upon.

7. How at this stage, this court can interfere in the order of the Court on the grounds (i) impugned order has been implemented (ii) estoppel due to receiving the costs and participating in the proceedings, not only amended application has been filed rather replication in response thereof has been submitted and (iii) partial evidence has been recorded. We in given circumstances are unable to invoke our jurisdiction to interfere in the impugned order. Let the trial should be concluded and the lis should be decided between the parties expeditiously. Hence, the trial Court is directed to conclude the trial within three months period. Counsel for the petitioner pointed out that the execution proceeding has been stayed as the decree which has attained finality has been passed against Fazal Hussain. In no way the ejectment of Fazal Hussain can be stayed as after dismissal of his objection petition, there is no hurdle in the way of the petitioner to get the fruit of the decree. It is the demand of the law and justice that if the judgment debtor Fazal Hussain is in possession of the suit house, let the law should find its own way in the shape of execution as enshrined in Order XXI of the C.P.C. wherein the mechanism for the execution of the decree has been described in detail. So, the execution court is directed to execute the decree in its letter and spirit against the said judgment debtor so that petitioner should get fruit of the decree. This writ petition is disposed of in the above terms. AG/120/P Order accordingly.