1. ' This constitutional petition is filed by the petitioners against the order passed by learned IV- Additional District Judge Karachi East on 7-9-2007 in Civil Revision Application No,68 of 2007 whereby the said Revision Application was dismissed with the following observations:-- "5. The trial Court after the parties ordered the applicant to leave the suit property within three weeks and also framed issues in that application. The above applicants who were the alleged contemnors in that application filed Civil Miscellaneous Appeal No,31/2006 which was transferred to this Court and same was decided and dismissed on 31-1-2007. The Revision Application No,17 of 2007 against that order was also disposed of on 5-4-2007 by consent of the parties and the applicants have to leave .The property within 3 months. In this context it cannot skipped on the sight that the applicants filed counter-affidavits to that application and categorically stated that none of them purchased the suit property from Mst. Khalida Begum (respondent No,11) and further stated that they are living in the property free of any charges and do not have any interest, right into the property.
6. After finishing of the entire story the applicants again emerged with the above-mentioned applications three in numbers with alleged agreement to sell and cheques, and all were dismissed by the learned-counsel for the applicant. Now the contention of the applicants are that they have substantial rights in the property as same is purchased by making payment of Rs,43,00,000 to respondent No,11; which is absolutely belying and contradictory to the earlier contention of the applicants. It is noticeable that never before it, neither in the trial Court, or in C.M.A. No,31/2006 and Civil Revision No,17/2007 this absolutely `U' turns allegations were made by the applicant. In this revision application in hand allegations of collusion with respondent No,11 have also been levelled against the previous counsel of the applicants namely Mr. Ilyas Khan Advocate which are untenable and uncalled for as how from a person who claimed to be highly educated and qualified signed their affidavits totally against their interest and remained kept mute throughout the different proceedings and even the change of their Advocates. The learned counsel has not been able to convince me what fraud misrepresentation of concealments of facts having been committed by the respondents or any one of them on the Court's proceedings which might resort to application under section 12(2) C.P.C. Any alleged fraud between the parties themselves is not the subject of the application under 12(2), C.P.C. The applicants under the garb of those applications cannot be allowed to defeat the order passed by the Honourable High Court in Civil Revision 17/2007. The learned trial Court under the circumstances rightly rejected the application in limine findings no merits in it. I would myself prefer to dismiss the same in limine as frivolous applications should not be kept alive and burdened to decide after notice to the parties, consequently the revision application dismissed in limine with no order as to costs."
2. The petitioners first filed application under Order I, rule 10(2), C.P.C. Before the Court of learned III- Senior Civil Judge Karachi East along with an application under section 12(2), C.P.C. Which applications were dismissed without issuance of notice to other side and, therefore, the above said Revision Application was filed before the Appellate Court.
3. The grievance raised by learned counsel for the petitioners is to the effect that both the Courts of learned Senior Civil Judge as well as learned Additional District Judge, without even issuance of notice to the other side, dismissed both the above side applications.
4. The relevant observations of the learned Additional District Judge, having been reproduced hereinabove, the details of alleged fraud/misrepresentation of facts and/or want of jurisdiction are not even pointed out before us now while hearing this constitutional petition.
5. Learned counsel for the petitioners states at the bar that possession of the suit property was earlier with the petitioners but such possession was taken from them under the orders of the Court of III- Senior Civil D Judge Karachi East against which petitioners filed a civil appeal which was also dismissed and now a Civil Revision Application has been filed by the petitioners, which is still to be heard and decided.
6. On the face of such facts and the circumstances, on the one hand, the litigation in between the parties appears to have taken place and competent lower Courts appear to have decided the case against the petitioners and until and unless the said judgments passed by the two Courts below are set aside, the petitioners cannot claim any right of ownership in the suit property; on the other hand, while the litigation is still pending, it does not lie in the mouth of the petitioners to say that the orders passed by learned two lower Courts were obtained by fraud, misrepresentation and/or for want of jurisdiction.
7. In any case, the remedy is either being availed by the petitioners for the purpose of seeking relief, directly or indirectly, as involved in the case in hand or if the proper remedy is not availed by them, the application under section 12(2), C.P.C. Cannot be said to have been filed competently by the petitioners.
8. Under the circumstances, learned two Courts below rightly dismissed both applications of the petitioners and, therefore, there being no merit in this constitutional petition the same is hereby dismissed in limine along with listed application but the petitioners shall be at liberty to file competent/legal proceedings before the competent forum for the purpose of adjudication of their rights, if any, which may be involved in the suit property.
9. ' Needless to state that the observations, as recorded hereinabove, shall not affect the right, title or interest of the petitioners in the suit property, which they may otherwise prove before the competent court of law to be having therein.