' The brief facts out of which present writ petition arises are that Mst. Amina Bibi, respondent No,1 filed a suit for declaration with regard to shop in question and residential house in the Court of Civil Judge, Mandi Baha-ud-Din, which was dismissed by the learned trial Court vide judgment and decree dated 10-7-1991. Respondent No,1 Mst. Amina Bibi being aggrieved filed two appeals before the learned Additional District Judge, Mandi Baha-ud-Din, who accepted the appeal of respondent No,1 to the extent of house, whereas her appeal to the extent of shop was dismissed vide consolidated judgment and decree dated 5-12-1995. The petitioner being aggrieved challenged the same before this Court in Civil Revision No,883 of 1996, which was dismissed by this Court vide judgment dated 2-5-2003. The petitioner being aggrieved filed petition before the Honourable Supreme Court, which is pending adjudication. Respondent No,1 filed a suit for possession with regard to shop in question against the petitioner in the Court of Civil Judge, Mandi Bahaud-Din. The petitioner filed written statement controverting the allegations levelled in the plaint along with preliminary objection that the suit is not maintainable in view of Order II, rule 2 of C.P.C. Read with Order XXIII of C.P.C. The petitioner also filed an application under Order VII, rule 11, C.P.C. Before the learned trial Court. The learned trial Court framed the following preliminary objection in view of divergent pleadings of the parties:- "Whether the suit is barred under Order II, rule 2, C.P.C. Read with Order XXIII of C.P.C.? OPD"
' The learned trial Court after recording the evidence of the parties dismissed the application vide order, dated 14-7-2004. The petitioner being aggrieved filed revision petition before the learned District Judge, Mandi Baha-ud-Din, who dismissed the same vide impugned judgment, dated 21-3- 2005. Hence, the present petition.
2. The learned counsel of the petitioner submits that both the Courts below erred in law to dismiss the application of the petitioner during the pendency of petition of the petitioner qua earlier round of litigation with regard to the house and shop before the Honourable Supreme Court. He further submits that the matter is not finalized, as the matter is sub judice before the Honourable Supreme Court, therefore, the impugned judgments of the Courts below are not sustainable in the eye of law.
He further submits that both the Courts below erred in law to dismiss the application of the petitioner, which is not in consonance with mandatory provisions of law i.e,. Order II, rule 2, C.P.C. As per principle laid down by the superior Courts. In support of his contention, he relied upon the following judgments:- ' Allah Bakhsh and others v. Dr. Abdul Waheed and others PLD 1996 Kar. 458; Riaz Ahmad v. Dr. Amtul Hameed Koser and 8 others 1996 CLC Kar. 678 and Haji Mir Alam Shah v. Adam Khan and 16 others 2004 CLC 1100.
' He further submits that in the earlier round of litigation, learned Additional District Judge has no lawful authority to grant relief over and above relief claimed by the respondent in her suit, therefore, observation in the judgment of the learned Additional District Judge, dated 5-12-1995 is not sustainable in the eye of law. In support of his contention, he relied upon Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCM R 1696.
3. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.
4. It is better and appropriate to reproduce the operative part of judgment, dated 5-12-1995 to resolve the present controversy between the parties: "The appeal to the extent of suit shop is dismissed on the ground that as admittedly Allah Ditta is in possession of the suit shop and no relief for possession is sought by Amina Bibi, therefore, her suit to this extent is incomplete in its present form particularly in the circumstances when, no such amendment in the pleadings was sought by Amina Bibi till today. The suit filed by Amina Bibi v.
Allah Ditta and Wali Muhammad is, therefore, partially decreed to the extent of suit house only. The suit shop has a separate entity and therefore, the appellant Amina Bibi, if so advised would be competent to file a separate suit for possession on the basis of title against Mriza Allah Ditta. With these observations, the appeals are disposed of."
' It is pertinent to mention here that respondent No,1 has filed two appeals against the judgment and decree of learned trial Court, dated 10-7-1991. Out of which one appeal of respondent No,1 was accepted to the extent of house; whereas second appeal to the extent of shop in question was dismissed by observing that her suit to the extent of shop is not maintainable as the said shop is separate entity. The petitioner has filed only one appeal before this Court, which was dismissed by this Court vide judgment dated 2-5-2003. The petitioner has filed petition before the Honourable Supreme Court to the extent of house, but the petitioner has not attached the ground of revision petition along with this petition against the judgment of learned Additional District Judge, dated 5- 12-1995. The petitioner has attached only memorandum of the civil petition for leave to appeal No,1814-L of 2003 with this petition. The petitioner has not taken a single ground to the extent of shop as the shop is not distinguished and separate entity.
5. In case, the aforesaid facts are put in juxtaposition, then the judgment and decree dated 5-12- 1995 to the extent of shop is final between the parties as the petitioner has not challenged the wires of judgment and decree dated 5-12-1995 to the extent of shop before this Court, as per principle laid down by the Honourable Supreme Court in Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. The judgments cited by the learned counsel of the petitioner are distinguished on facts and law as in the cited judgments; whereas in the present controversy as mentioned above, respondent No,1 has filed two appeals before the First Appellate Court, which were decided one in favour of the petitioner qua shop in question; whereas other appeal was decided in favour of respondent No,1 with regard to house.
6. It is better and appropriate to reproduced the operative part of judgment of First Appellate Court to resolve the controversy between the parties:-- "The learned counsel for the petitioner argued that previously, the suit filed by the petitioner was regarding the same property and the second suit was barred under Order II, rule 2, C.P.C. He referred to Haji Mir Alam Shah v. Adam Khan and 16 others 2004 CLC 1100. The documentary evidence filed by both the parties as well as statements made by the plaintiff and the defendant reveal that the suit shop was included in the previous suit which was filed for declaration. The said suit was dismissed and the learned Appellate Court while deciding the appeal on 5-12-1995 decreed the suit of the respondent in her favour in respect of house and dismissed the same to the extent of shop (the present suit shop) on the ground that the plaintiff has failed to claim the consequential relief and as such her suit is incompetent. The learned Appellate Court further held that the suit shop has a separate entity and therefore, the appellant Amina Bibi. If so advised, would be competent to file a separate suit for possession on the basis of title against Mirza Allah Ditta. The said judgment of Appellate Court was challenged by the present petitioner, which was dismissed and now the petitioner has approached the Honourable Supreme Court. Therefore, the present objection taken by the petitioner against the maintainability of the suit has already been decided by a competent forum. The learned counsel has raised another objection that no proceedings should be carried till the final decision of Honourable Supreme Court. But the learned counsel of the appellant has also admitted that no order for stay of proceedings has been issued by the Honourable Supreme Court. The case-law referred by the counsel for the petitioner does not affect the merits of this case in the presence of previous order of learned Additional District Judge which still holds the field. The trial Court has discussed the evidence of the parties and has rightly decided the issue against the defendant-petitioner. The said findings are upheld."
7. It is also settled principle of law that mere pendency of the petition before the Honourable Supreme Court without suspension of judgment and decree of this Court, there is no bar to proceed in the matter by the Courts below but in the present case, this question does not arise at all as the judgment of the learned Additional District Judge dated 5-12-1995 to the extent of shop is final between the parties in terms of law laid down by the Honourable Supreme Court in the (supra) cited Pir Bakhsh's case. It is also admitted fact that both the Courts below have decided the application of the petitioner concurrently against him, therefore, the Constitutional petition is not maintainable as per principle laid down by the Honourable Supreme Court in the following judgments:-- ' Khuda Bakhsh v. Muhammad Sharif and others 1974 SCM R 279; Muhammad Sharif and others v.
Muhammad Afzal and others PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan Ahmad and others PLD 1981 SC 522.
It is also admitted fact that both the Courts below have given concurrent findings against the petitioner and this Court has no jurisdiction whatsoever to substitute its own findings in place of findings of Courts below while exercising power under Article 199 of the Constitution, as per principle laid down by the Division Bench of this Court and by the Honourable Supreme Court in the following judgments:-- ' Board of I.& S.E. Lahore v. M. Musaddaq Naseem PLD 1973 Lah. 600 and Syed Azmat Ali Shah v. Chief Settlement Commissioner and others PLD 1964 SC 260.
It is also settled principle of law that where the revision petition has been heard by the District Judge a writ petition may lie against it before this Court in a proper case, but writ petition will not be entertained merely because another view is possible, as per, law laid down by the Honourable Supreme Court in the following judgments:-- ' Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and others v.
Lal Muhammad and others 1988 SCM R 322; Pakistan through Secretary v. Special Court (Banking)
1991 SCM R 2355 and Mst. Iqbal Begum v. Muhammad Akbar and others 1992 CLC 232.
' In view of peculiar circumstances of this case as highlighted in the preceding paragraphs, I am not inclined to entertain this Constitutional petition, therefore, this Constitutional petition has no merit and the same is dismissed.