' MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide two constitutional petitions, one in hand and the other W.P. 11374 of 2005, as both these petitions are directed against the same orders/judgments, raise similar question of law/facts and are inter the same parties. Petitioners in both these petitions, challenged the judgments/orders dated 27-5-2003 and 9-8-2004 passed by the learned Senior Civil Judge, and the learned Additional District Judge Bhakkar, to be declared illegal, void and of no legal consequence whereby six different applications filed by the parties, and their revision petitions were dismissed respectively.
2. Succinctly, relevant facts are that land measuring 1240 Kanals 9 Marlas situated in Chak No,6, RakhMankera, District Bhakkar was allotted to one Muhammad Ayub son of Sarnand Khan under Tube Well Scheme in the year 1963-64 who appointed one Ch. Ghulam Rasul son of Muhammad Ibrahim as his general attorney. Ch. GhualmRasul the appointed general attorney of the allottee, was the real father of Muhammad Iqbal writ petitioner of the petition in hand i,e, W.P. No,14822 of 2004 and that of Muhammad Shoaib Writ Petitioner of the connected petition i,e, (W.P. No,11374 of 2005) whereas allottee of Tube Well Grant has also died and is represented through respondents No,7 to 13. Muhammad Iqbal writ petitioner filed a suit for declaration against the sons of Muhammad Ayub Khan allottee, and alleged that special attorney, appointed by Ch. Ghulam Rasul. Namely SabirHussain respondent No,7 had agreed to transfer the suit property vide agreement dated 1-2-1986, for a consideration of Rs,4,72,714 out of which he received an amount of Rs,3,50,000 as earnest money. It was further pleaded that under the agreement dated 1-2-1986 it was settled that remaining installments and all other dues which were payable to the Government, thenceforth shall be paid by Muhammad Iqbal writ petitioner/plaintiff on behalf of the lessee Muhammad Ayub Khan, Muhammad Iqbal petitioner further averred that physical possession of the suit land was delivered to him in pursuance of the aforesaid sale agreement with approval of the Board of Revenue vide memo. No,165-76/977 TR-III dated 27-3-1976. According to him, on conformant of proprietary rights to the allottee, land subject of agreement was to be transferred in the name of Muhammad Iqbal petitioner. As per assertions, in the plaint filed by Muhammad Iqbal, the petitioner, he had paid to Thal Development Authority an amount of Rs,1,22,714 on account of outstanding installments due against the allottee and this amount was deposited against Bank challans. Muhammad Iqbal petitioner narrated in the plaint that he spent a huge amount on improvement of land by plantation of large number of trees, sinking of a tube well raising of construction and making the land cultivable: Muhammad Ayub Khan, the allottee died before the conformant of proprietary rights whereafter his successor refused tohonour the agreement to sell allegedly executed by special attorney appointed by Ch. GhulamRasul. On refusal of the heirs/legal representatives of the allottee Muhammad Ayub Khan to perform their part of contract on behalf of their father, Muhammad Iqbal was forced to file this suit.
3. Respondents Nos. 7 to 13 being defendants in the suit filed by Muhammad Iqbal, contested the same by filing their written statements whereas Sabir Hussain the alleged attorney filed his consenting written statement. In view of controversial pleading of the parties to the suit they were put to trial by framing of issues. Pending suit, heirs/legal representatives of original allottee Muhammad Ayub Khan received an amount of Rs,2,50,000 from Muhammad Iqbal petitioner and deserted contest of the suit which was ultimately decreed by the then the learned Senior Civil Judge, Bhakkar vide judgment/decree dated 30-7-1998.
4. Muhammad Shoaib and Mst. GhazalaYasmeen along with RiazAyub their brother on 24-4-2000 filed an application under section 12(2), C.P.C. Before the learned Senior Civil Judge, Bhakkar which is reported to be pending. Their case was that their father Ch. Ghulam Rasu.1 had purchased tenancy rights of land measuring 1240 Kanals, 9 Marlas from the allottee of the tubewell grant i,e, Muhammad Ayub Khan who after receipt of the entire price executed a general power of attorney in the name of Ch. GhulamRasul which was registered on 21-11-1978. According to them, their father suffered from brain hemorrhage and was accordingly admitted in Ganga Ram Hospital Lahore on 5-10-1981 and thus was on death bed till 21-9-1989 was not in a position/capacity to visualize/understand his good or bad but their brother Muhammad Iqbal connived with the other respondents in the application under section 12(2), C.P.C. And maneuvered a fictitious special power of attorney on 21-1-1986 allegedly executed by their father Ch. GhulamRasul in favour of Sabir Hussain. These writ petitioners further averred in their application that their father used to sign in English whereas, the alleged special power of attorney in favour of Sabir Hussian was said to have been thumb marked by him. They further challenged the agreement to sell dated 1-2-1986 as fake/collusive which was executed by the special attorney in favour of Muhammad Iqbal petitioner and in this manner they prayed the judgment/decree dated 30-7-1998 may be adjudged being tainted with fraud and misrepresentation qua the Court.
5. Parties to the application under section 12(2), C.P.C. Filed different six applications before the learned Senior Civil Judge, cognizant of the same, for review/recall of the injunctive order dated 10- 4-2004 application for deletion of name of Gohar Ayub Khan respondent iNo,3 therein; application by Riaz Ayub for withdrawal of application under section 12(2), C.P.C. To his extent and application for appointment of receiver of the suit land. The learned Senior Civil Judge, after getting replies to all these applications and hearing the parties dismised all of those vide his consolidated order dated 27-5-2003.
6. Parties to the lis were not satisfied with the decision of the trial Court dated 27-5-2003 and they accordingly filed three revision petitions, out of which two were filed by Muhammad Iqbal and others whereas the third one was filed by Muhammad Shoaib and others before the learned Additional District Judge Bhakkar but they remained unsuccessful as all the three revision petitions were dismissed through consolidated revisional judgment dated 9-8-2004. Muhammad Iqbal thereafter filed writ petition No,14822 of 2004 whereas Muhammad Shoaib along with Mst. Ghazala Yasmeen filed Writ Petition No,11374 of 2005 and respondents in each petition, in response to notice by this Court have appeared and were represented through their counsel.
7. I have heard the learned counsel for the parties and have examined the record, appended herewith. Muhammad Iqbal petitioner had moved an application under Order VII, Rule 11, C.P.C.
Averring that his brother Muhammad Shoaib and his sister Mst. Ghazala Yasmeen had no cause of action/locus standi to file the application under section 12(2),C.P.C. But on this score by invoking the provisions under examination, application could not be rejected, as prima facie the applicants thereof being successors of Ch. Ghulam Rasul had claimed A purchase of tenancy rights by their father and pleaded that the alleged special attorney namely Sabir Hussain respondent No,14 was never appointed as special attorney and was not conferred any authority to enter into an agreement as his principal Ch. Ghulam Rasul being on death bed was incapacitated to execute any such document. Tentatively, Muhammad Shoaib etc the-writ petitioners had made out elements of fraud/misrepresentation qua the Court and their application under section 12(2),C.P.C.
Did disclose ..a cause of action, hence the same could not have been rejected under Order VII, Rule 11, C.P.C.
8. As regards the application for review/recall of the order dated 10-4-2003 filed by Muhammad Iqbal petitioner, the order sought to be reviewed was only interlocutory in nature, suspending the judgment/decree dated 30-7-1998 and would automatically stand vacated on decision of the main petition under section 12(2), C.P.C. Even B otherwise judgment/decree dated 30-7-1998 is declaratory in nature and cannot be put to execution, thus its suspension would not effect the decree-holder especially when he claims to be in possession of the suit land. Concurrent findings returned by the respondents Nos.5 and 6 accept no exception and are accordingly maintained.
9. Coming to other two applications filed by Muhammad Shoaib etc. Petitioners, one under Article 117 Qanun-e-Shahadat, 1984 and the other for appointment of receiver of the land subject of litigation, Muhammad Iqbal petitioner is in possession of the land under a judgment/decree dated 30-7-1998 which has not been cancelled/set aside or adjudged, so far and at the present, his possession cannot be disturbed. Muhammad Shoaib etc. In case of their success in their application under section 12(2), C.P.C. Will have a right to demand rendition of Accounts or recovery of mesne profits by initiating appropriate proceedings but unless they establish their case by producing evidence, their prayer of appointment of receiver could not have been accepted especially when the pre-requisites of Order XL, Rule 1, C.P.C. Were not fulfilled. Likewise their prayer to require Muhammad Iqbal petitioner to prove his asserted forgery/fraud in associating/making Mst. Ghazala Yasmeen as one of the applicants by inscribing her fake signatures, vanished in view of direction already given by the trial Court to her to appear in person and to certify her implement or to refute the same. Mst. Ghazala Yasmeen is co-petitioner with Muhammad Shoaib in W.P.
No,11374 of 2005 and in view of it, I am of the considered view that course adopted by the trial Court is just/fair and requires no interference by this Court. It goes without saying that Muhammad Iqbal himself being a respondent to application under section 12(2), C.P.C. Cannot seek deletion of name of Mst. Ghazala Yasmeen especially when the trial Court is equipped with the powers of deletion names of unnecessary parties as per provisions of Order I, Rule 10, C.P.C. And this exercise will be undertaken on compliance of order dated 10-4-2003 by the trial Court.
10. For the reasons noted above, none of the respondents Nos.5 and 6 committed any illegality amenable to constitutional jurisdiction of this Court, as they decided all the applications by the parties strictly in accordance with the law applicable and the record. Even otherwise a lawful decision rendered within the ambit of conferred jurisdiction cannot be substituted on this petition which being devoid of any merit is dismissed with no order as to costs but in view of contest inter the real brothers/sister, and its pendency since the year 2000 it will be in the interest of justice to conclude the same expeditiously hence the trial Court is directed to decide the matter pending before it, within a period of 4 months even by undertaking day to day proceedings. There will be no order as to costs.