2008 PLP 619 (CLC)

SAGHIR AHMAD, J.

Through this constitutional petition, Bashir Ahmad petitioner has assailed two orders, one dated 28-2-2007 whereby the learned trial Court allowed application of respondents to implead certain parties in the array of defendants and the second dated 29-10-2007 of the learned Additional District Judge, whereby, the revision petition filed by the petitioner against the above order of the learned trial Court, was also dismissed.

2. The facts in brief are that plaintiffs/respondents filed a suit for specific performance against the defendant/petitioner with regard to the property in dispute. During the trial, it so happened that parties reached to a compromise and in terms thereof, after deletion of Province of Punjab and Commissioner, Bahawalpur from array of defendants, the suit was decreed, however, during execution proceedings the petitioner resiled from the said compromise, whereupon, on an application under section 12(2), C.P.C., the suit was restored for its decision afresh. After that, the respondents/plaintiffs moved an application under Order I, rule 10, C.P.C. before the learned trial Court/Civil Judge 1st Class, Rahim Yar Khan with the prayer to implead Province of Punjab and the Commissioner, Bahawalpur as defendants in the said suit. The learned trial Court vide order, dated 28-2-2007 allowed the said application and against the said order, revision petition filed by the petitioner/defendant was also dismissed by the learned Additional District Judge, Rahim Yar Khan vide order, dated 29-10-2007, hence, this petition.

3. It is contended by learned counsel for the petitioner that after deletion of Province of Punjab and the Commissioner, Bahawalpur from the array of defendants in terms of statement of learned counsel for the plaintiffs/respondents, they could not ask for their subsequent impleadment, as they were stopped by their words.

4. Arguments considered. Record perused.

5. It is evident from the record that earlier the respondents had made statement for deletion of Province of Punjab and the Commissioner, Bahawalpur from the array of defendants, only in furtherance of the compromise entered between the parties, which compromise is no more there, rather the said order, dated 7-5-2002 already has been set aside. Therefore, after restoration of the suit for its decision afresh on merits, the principle of estoppel would not apply. Furthermore, according to the petitioner's own showing the matter with regard to Patta Malkiat still remained pending with the Government i.e. Province of Punjab (owner of the dispute land), therefore, no effective decree could be passed in the suit unless and until the Province of Punjab and the Commissioner, Bahawalpur are allowed to be impleaded as defendants in the suit, as they were necessary as well as proper party in the proceedings. Therefore, the learned trial Court rightly allowed the application of the respondents/plaintiffs and permitted addition of Province of Punjab and the Commissioner, Bahawalpur as party, which order was further correctly affirmed by the learned Additional District Judge in exercise of revisional jurisdiction.

6. Even otherwise, the apex Court in Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 held that: -- "We, are, therefore, not in a position to lay down the wide proposition that the constitutional jurisdiction of the High Court is not at all invokable in respect of an order passed by a Civil Court. In saying so we do not in the least mean to water down the general observations made in the aforesaid decisions discouraging vexatious and incompetent constitutional petitions filed against final orders passed by the Civil Court within the ambit of their jurisdiction unless the order is wholly void and coram non judice. " In the same terms this Court in Muhammad Samiullah Khan v. Additional District Judge, Sargodha PLD 2002 Lah. 56, held that "where the order was although illegal, but passed with jurisdiction, then the same could not be assailed in constitutional petition. Constitutional petition was competent against such revisional order if order passed by the revisional Court was wholly void or coram non judice". The learned counsel for the petitioner has failed to point out any such legal or jurisdictional infirmity in the impugned orders of two Courts below, calling for interference by this Court in exercise of its constitutional jurisdiction. Resultantly, I see no merit in this petition which is accordingly dismissed in limine. H.B.T./B-6/L Petition dismissed.