' IJAZ-UL-AHSAN, J.---This petition arises out of an order dated 2-4-2008 passed by a learned Addl.
District Judge, Arifwala. Through the said order, the learned court dismissed an application under section 151, C.P.C. Moved by the petitioner together with an application under section 12(2), C.P.C.
For setting aside an ex parte decree.
2. The facts of the case need not be reproduced in extenso because the same have been narrated in considerable detail in order dated 22-4-2008. However, in order to appreciate the main controversy, it is noted that a suit for specific performance tiled by the respondents before a learned Civil Judge at Arifwala was dismissed on 15-1-2002. It was based upon an oral agreement to sell. The respondents filed an appeal, which was allowed by a learned Additional District Judge, Arifwala, vide order dated 12-3-2003. In decreeing the suit of the respondents, the petitioner was proceeded against ex parte. The matter was challenged by way of a revision, which was dismissed.
The petition for leave to appeal was also dismissed by the Hon'ble Supreme Court of Pakistan.
3. After the first round of litigation had been completed, the petitioner filed, an application under section 12(2), C.P.C. Read with Order IX Rule 13, C.P.C. For setting aside the ex parte decree on the ground mentioned in the said application. Along with the aforesaid application, another application under section 151, C.P.C. Was moved for suspension of the decree. This application was dismissed on 22-4-2009.
4. The learned counsel for the petitioner submits that the learned subordinate courts have not recorded any finding on the fact whether or not the petitioner had a prima facie case. He points out that according to the learned subordinate courts all measures had been taken for service of the petitioner, which finding is not correct. The petitioner had taken a specific objection that copy of proclamation was not sent at her address. He further points out that where the court comes to the conclusion that' there is a triable issue, grant of interim relief is the natural consequence.
5. The learned counsel for the respondents submits that the husband of the petitioner had been prosecuting the case upto the Hon'ble Supreme Court of Pakistan and was in fact a party in the said proceedings. In these circumstances, it is not believed that the petitioner did not have knowledge of pendency of the proceedings. He further points out that judgment of the Hon'ble Supreme Court of Pakistan cannot be set aside by a learned Additional District Judge exercising his powers under section 12(2), C.P.C. Adds that the sale deed has also been executed and the sale has already been confirmed in favour of the respondent.
6. Heard. Record perused.
7. It is apparent that application under section 12(2), C.P.C. Read with Order IX Rule 13, C.P.C. Is already pending. The learned subordinate court has observed that averments made in the said application require recording of evidence after framing of issues. The said application will be decided after fulfiling the aforesaid requirements of law. The learned lower appellate court has found that prima facie, there is no apprehension of irreparable loss to the petitioner find that the matter relates to an immovable property and the petitioner has not altogether been non-suited in view of the fact that her application under section 12(2), C.P.C. Has been entertained. Issues have been framed and the court would pass appropriate orders after recording of evidence. Even otherwise, in order to be entitled to the grant of interim relief the petitioner was required to fulfil all three requirements for grant of interim injunction namely prima facie case, irreparable loss and balance of convenience.
8. It is apparent that the petitioner has directly or indirectly failed in various forum including the honourable Supreme Court of Pakistan. At this stage taking away the fruits of the decree would cause more inconvenience to the respondents rather than the petitioners. Even otherwise, if the application of the petitioner succeeds, he would be entitled to recover the immovable property which admittedly is of an agricultural nature and there is no allegation that its nature is in danger of being changed.
9. At this stage any further observations that this Court may make regarding merits of the case are likely to cause prejudice to the case of the petitioner. Therefore. I am inclined to refrain from giving any finding regarding the objections raised by the learned counsel for the respondents relating to the matters before the Hon'ble Supreme Court of Pakistan or regarding the impact of the judgment of the Hon'ble Supreme Court of Pakistan on the proceedings pending before the learned subordinate court.
10. For the reasons recorded above, I find that the learned appellate court has neither acted illegally nor with material irregularity in the facts and circumstances of the case. In my opinion, it is not a fit case for exercising revisional jurisdiction of this Court
11. This petition is without merit. It is accordingly dismissed.