This Constitutional petition seeks judgment dated 29-10-2003 passed by the learned Additional District Judge, Kamalia, to be declared illegal, void and of no legal consequence, whereby revision petition filed by the petitioner was dismissed.
2. Precisely, relevant facts are that respondent No.1 filed a suit for specific performance of an agreement to sell which was declared ex parte on 15-5-1994. Nadir who was predecessor-in- interest of the petitioner and was one of the defendants in the suit, filed an application under section 12(2), C.P.C. For setting aside the ex parte decree but could not produce any evidence, resulting in dismissal of the same vide order dated 18-6-1996. The decree-holder thereafter, went in execution, pending which Nadir judgment-debtor died on 28-6-1996. Petitioner after death of Nadir, filed a revision petition challenging the ex parte decree dated 15-5-1994 and the order dated 18-6-1996, whereby application under section 12(2), C.P.C. Was dismissed. The learned Additional District Judge, vide his judgment dated 29-10-2003 dismissed the revision petition on merits as well as holding that the same is barred by limitation. Now the petitioner has filed instant Constitutional petition for the relief noted above.
3. Learned counsel for the petitioner submits that the learned Additional District Judge, while dismissing revision petition has noted incorrect facts and thus returned judgment, which is not in consonance with the record. According to him, predecessor of the petitioner i.e. Nadir died on 28- 6-1996 and his application under section 12(2), C.P.C. Was dismissed on 18-6-1996 and the revisional Court noted that Nadir in his lifetime did not challenge the ex parte decree, which is factually incorrect. He further submits that since order impugned in the revision petition was passed at the back of the petitioner, as such, the revision petition was not barred by limitation. It was also submitted on behalf of the petitioner that law favours the decision on merits and instead of throwing the petition on technicalities the petitioner should have been heard on merits.
4. Learned counsel for the respondents refuted the arguments of the petitioner, supported the revisional judgment and urged that revision petition before the Court below was hopelessly barred by time which could not be condoned under law. He further submitted that revisional order of the learned Additional District Judge is not open to challenge in Constitutional jurisdiction of this Court.
He further elaborated his arguments by saying that petitioner even on merits has no case, worth determination by the Court.
5. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record, appended herewith. Undeniably, ex parte decree was passed on 15-5-1995 whereagainst application under section 12(2), C.P.C. Was filed and was dismissed under Order XVII, rule 3, C.P.C. On 18-6-1996. Revision petition filed by the petitioner after lapse of about six years i.e. On 1-3-2002. Time-barred revision petition was liable to dismissal on multiple grounds, as on the one hand there was no explanation for inordinate delay because order dated 18-6-1996 dismissing application under section 12(2), C.P.C. Was passed in the lifetime of predecessor of the petitioner Nadir, whereas on the other hand the revision petition was to be filed within a period of ninety days under section 115, C.P.C. This period of limitation having been provided by a special statute, section 5 of the Limitation Act, 1908, was not applicable in view of its provisions under Section 29(2) in view of the law laid down in the cases of Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286) and Punjab Road Transport Corporation through District Manager, PRTC, D.G. Khan and another v. Muhammad Iqbal Lodhi and another (2003 CLC 1539).
6. Nadir himself was a defendant in the suit and he by deserting his remedy under Order IX, C.P.C.
Opted to file an application under section 12(2), C.P.C., which does not fulfil the pre-requisites of this provision of law as well. It is now settled that fraud or misrepresentation has to be qua the Court, but there is no such assertion in the application filed by the petitioner under section 12(2), C.P.C. In this manner the petitioners also had no case on merits for determination by the Courts below.
7. For what has been discussed above, I am constrained to hold that the revisional Court has rightly dismissed the revision petition filed by the petitioner and this judgment being within the ambit of authority allocated to him by law the same cannot be declared as prayed. This petition having no merit in it, is accordingly dismissed in limine.