C.M. Nos.289, 290, 291 and 292/C of 2005.
' Instant petition under section 12(2), C.P.C. Prayed annulment of judgment by this Court dated 14- 4-1999 passed in Civil Revision No,251 of 1996 having been procured by the respondents by.Practising fraud qua the Court.
2. Succinctly, relevant facts of the case are that the respondents filed a suit for possession through partition and permanent injunction against the petitioners claiming themselves to be heirs of Fazal Din son of Khuda Bakhsh who died issueless on 7-5-1973, asserting their 10/48 share in Property No,L-585, a double storeyed house situated in Mohallah Qasimabad, Rawalpindi City along with eight Quarters bearing Nos.B/319 to B/326 and two shops situated in Mauza Ghela Khurd, Taxila. The separate possession to the extent of respondents share in the properties, was claimed out of the joint properties besides praying decree for mesne profits with a permanent injunction restraining the petitioners permanently from changing, altering or demolishing the suit properties.
3. The petitioners being defendants in the suit, contested it by filing their written statement wherein they besides denying relationship of the respondents with deceased Fazal Din, pleaded that House No,L-585 was sold out by the deceased in his life time. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter after doing the needful decreed the suit of the respondents vide his judgment/order 20-9-1995.
4. The petitioners aggrieved of the decision of the trial Court dated 20-9-1995 filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and preliminary decree passed by the trial Court was reversed through appellate judgment and decree dated 12-2-1996.
5. The respondents filed a Civil Revision No,251 of 1996 before this Court which was accepted on 14- 4-1999, reversing appellate judgment and judgment/decree of the trial Court dated 20-9-1995 was revived. The petitioners felt aggrieved of the judgment by this Court dated 14-4-1999 and filed a civil petition for leave to appeal before the Honourable Supreme Court wherein the leave was granted and the same was converted into Appeal (C.A. No,1855 of 2000). The Honourable Supreme Court ultimately dismissed the appeal of the petitioners and they have now filed instant petition under section 12(2), C.P.C.
6. Learned counsel for the petitioners submitted that the respondents earned decision in their favour on the basis of fake Mutation of Inheritance No,1250 which was wrongly sanctioned in the name of Fazal Din son of Khuda Bakhsh whereas he was not owner in the Khewat. According to him, the respondents played fraud qua Court by claiming property of one Fazal son of Karim Bakhsh to whom they were not related by any means. A reference to Note given by Assistant Commissioner-II dated 26-11-1990 on the back of Mutation No,1250 was made in support of the relief prayed.
7. I have minutely considered the respective arguments of the learned counsel for the petitioner and have examined the entire record. The respondents had filed their suit on 3-9-1990 which was contested by the petitioners from tooth to nail, denying relationship of the respondents with Fazal Din son of Khuda Bakhsh. Mutation No,1250 along with all Notes thereon was produced in evidence as Exh.P.2, was discussed/relied by all the Courts in earlier round of litigation thus, the petitioners cannot be allowed to turn back after losing case before the Honourable Supreme Court to contend that Note on the Mutation No,1250 was not in their knowledge. Petitioners being not the descendants of their claimed co sharer Fazal son of Karim Bakhsh, have no locus standi to pray that their A suit for partition be dismissed. It is too late in the day to assert such things especially after going through all the stages of litigation of trial, appeal, revision and appeal before the Honourable Supreme Court thus, condonation of delay prayed through C.M. No,292/C of 2005 is declined as the mutation and entries thereover were in the knowledge of the petitioners from the very inception of litigation. Law has not provided B any limitation for filing an application under section 12(2), C.P.C. And in this eventuality residuary Article 181 of the Limitation Act, 1908 would govern it, where under limitation is three years from the date of knowledge of the order under attack. Since the petitioners were party to suit by the respondents and judgment, dated 14-4-1999 was passed in their presence, this petition after six years is patently time-barred and they have no plausible explanation for this inordinate delay.
8. Petitioners are not descendants of Fazal son of Karim Bakhsh who is now said to be co-sharer along with them in place of Fazal Din son of Khuda Bakhsh, as such, petitioners are not concerned with the property/share in his name. They cannot be heard to say that share of Fazal son of Karim Bakhsh was incorrectly given to the descendants of Fazal Din son of Khuda Bakhsh. Besides it, petitioners did not pleaded any such case in their written statement and cannot set up this plea, after losing first round of litigation up to the level of Honourable Supreme Court, for the first time in their petition under section 12(2), C.P.C. The petitioners have no locus standi to challenge the judgment dated 14-4-1999 in Civil Revision No,251 of 1996. Had there been any impersonation, descendants of Fazal son of Karim Bakhsh should have come forward to assert the things, which are being pleaded by the petitioners. Above all, petitioners have placed nothing on record to show how and on what basis Note dated 26-11-1990 was inscribed on Mutation No,1250 because in Column No,4 of the mutation Fazal Din son of Khuda Bakhsh is mentioned as one of the co- owner/co-sharer of the suit property. They could have brought Revenue Record showing that factually the co-sharer was Fazal son of Karim Bakhsh but no effort was made by them. The Courts in earlier round of litigation decided the lis on the basis of evidence produced by the parties and it can hardly be argued with the plea raised by the petitioners that a case of fraud qua Court, was made out. Descendants of Fazal son of Karim Bakhsh the claimed co- E sharer did not initiate any kind of proceedings I-civil/criminal against the petitioners for having Mutation No,1250 sanctioned in their favour. Maintainability of petition under section 12(2), C.P.C. Before this Court is also doubtful but since it lacked any merit hence I avoided to enter into this controversy and opted to decide it as it stands. I have no ambiguity that after decision of case, on merits by the Honourable Supreme Court, F this Court will not be in a position to annul its own judgment, dated 14-4-1999 as the net result would be setting aside of the judgment of the Supreme Court where against this Court cannot sit in appeal.
9. For the reasons noted above, none of the pre-requisites mentioned in section 12(2), C.P.C. Is made out. Petitioners have no locus standi to challenge inheritance of Fazal Din or Fazal as they are not G related to any of them and in earlier round of litigation, dispute having been compassed over the mutation which was part of the record, no case for determination by this Court for the second time was made out. This petition along with C.M. Nos.290, 291, 292/C of 2005 is dismissed in limine being devoid of any force/merit.