PERVAIZ INAYAT MALIK, J. --- Through the Constitutional petition judgment dated 30.1.2009 and 14.2.2007 passed by learned Additional District Judge, and learned Civil Judge: 151 Class, Dera Ghazi Khan have been assailed.
2. Briefly stated facts as those emerged outs this Constitutional petition are that Murad. Ali s/o AllahWasaya (Allah Ditya) was owner of land in revenue estate of Goliwah, Tehsil and District D.G. Khan. The petitioner Khuda Bukhsh Jogyani etc. Filed a suit on 23.11.1974 for specific performance of contract against Murad Ali predecessor-ininterest of respondent on the basis of agreement to sell dated 10.4.1974 pertaining to land measuring 937- Kanals and 3-Marlas situated in the revenue estate of Goliwah. It was averred in the suit that defendant Murad Ali received Rs. 1,000/- (Rupees one thousand only) as earnest amount whereas the balance amount of Rs. 200/- (Rupees two hundred only) was to be paid at the time of mutation, within the period of six months from the date of agreement. Since the defendant Murad Ali did not appear before the Court despite alleged service of summons, therefore, he was proceeded against ex parte and suit of the petitioners was decreed vide judgment and decree dated 28.1.1976. Shamshad Ali, Mst. Manjran alias Naazran and Mst. Basil respondents Nos. 3 to 5 claiming son and daughters of Murad Ali deceased filed application under Section 12(2), C.P.C. On 27.2.1988 for setting aside ex parte judgment and decree dated 28.1.1976 alleging that same was procured as a result of fraud and mis-representation. The learned Trial Court framed the following issues on 21.10.1991:---
(1) Whether the decree dated 28.1.1976 is result of fraud and mis-representation? OPO
(2) Whether the petition is within time? OPA.
(3) Relief.
3. The learned Trial Court, vide the impugned judgment dated 14.2.2007 allowed the application under Section 12(2), C.P.C. Consequently the civil suit seeking specific performance filed by the petitioners was restored for decision of the same on merits whereagainst a revision petition was preferred by the petitioners which has been dismissed vide the impugned judgment dated 30.1.2009.
4. It is inter alia contended by learned counsel for the petitioner that respondents Nos. 3 to 5 were not successors of Murad Ali, deceased, therefore, application under Section 12(2), C.P.C. Filed by them was not competent. He has referred to para-7 of the application and Annexure "G" which is written statement to the above-said application filed by the petitioners. He has also referred to the impugned judgments. He has also referred to the impugned judgment passed by learned Civil Judge, dated 14.2.2007.To canvass that the name of the grandfather of the petitioner was Allah Wasia and not Allah Din, therefore, be concludes that Murad . All defendant in the civil suit was a different person, whereas the respondents Nos. 3 to.5 are successors of some Murad Ali who is a different man, therefore, have 'no locus standi to file application under Section 12(2), C.P.C. Adds that said Murad All having been properly served the ex parte decree was rightly passed by the learned Trial Court, and that no issue was framed about this specific contention of the petitioners.
Relied upon 1989 'SCMR 1719 to canvass that without framing proper issue and also without giving a fair opportunity to the petitioners, to produce evidence in support thereof the impugned judgment could not be passed.
5. Arguments heard. Record perused.
6. I have noted with concern that issues . Were framed on the application submitted under Section 12(2), C.P.C. As far as back on 21.10.1991 which remained-pending before the learned Trial Court, for about 19 years and during this entire period not even a single application was moved by the petitioners praying for framing of additional issue nor any request was ever made for producing any additional evidence. At this belated stage, learned counsel for the petitioner has tried to canvass that the case may be remanded back to the learned Trial Court for framing of additional issue which prayer of the petitioners does not seem fair. I also find that the learned Trial Court, has exhaustively dealt with the issue and even otherwise there was/is no need to frame any additional issue on the subject. I have also noted with concern the conduct demonstrated by the petitioners throughout the proceedings, which smells foul play male fide, the sole object being to and to the agony of the other side. I have also minutely examined the documents placed on the file by the petitioners. Not only that the impugned judgments are well-reasoned and also concurrent in nature besides, in my considered view the conduct, which is floating on the surface of the record, demonstrated by the petitioner during the past about 4 decades dis-entitles them to the grant of discretionary relief.
7. For what has been discussed above, this petition being devoid of any merits is hereby dismissed with costs throughout.