' KHALID MEHMOOD KHAN, J..---Through this revision petition, petitioner has impugned the judgment/decree dated 8-7-2009 passed by learned Additional District Judge-I, Lakki Marwat vide which the appeal of petitioner was dismissed by maintaining the judgment/order passed by learned Civil Judge, Lakki Marwat dated 17-5-2008 vide which the application of petitioner for setting aside ex parte proceedings was dismissed.
2. Short facts of the instant revision are that respondent No, 1/plaintiff filed a suit for possession of the suit house through partition. The suit was contested by respondent No,2/defendant, whereas the present petitioner along with others were proceeded ex parte. The trial Court after framing issues, directed the parties to produce their respective evidence which they did accordingly. In the meanwhile petitioner moved an application for setting aside ex parte proceedings initiated against him on the ground that he was neither served upon personally nor through any other means and he was quite unaware of the proceedings, which was controverted. The learned trial Court after obtaining replication and hearing the arguments from both sides, dismissed the application of the petitioner vide judgment/order dated 17-5-2008.
4. Petitioner impugned the judgment/order of the trial Court before the learned Appellate Court, who after hearing arguments of both the sides dismissed the appeal of petitioner vide judgment/decree dated A 8-7-2009 and maintained the judgment/order of the trial Court, hence the instant revision petition.
5. Learned counsel for the petitioner argued that the petitioner has been non-suited without giving opportunity of recording pro and contra evidence regarding execution of the summon against him, which is against the natural justice and the established principle of law and equity. He contended that the petitioner is illiterate and there are also other cases pending between the parties in different Courts. He submitted that the possession of the suit house is with the respondent No,2 and being co-sharer the petitioner has right in the suit house, hence law and justice demands that the case should be decided on merits.
6. On the other hand, learned counsel for the respondents argued that the application of petitioner for setting aside ex parte proceedings has been filed after the lapse of more than six years even the same was not filed along with application for condonation of delay. He urged that no reason for long silence has been mentioned in the application, and the parties are real brother and sister inter se, are residing in the same village. Learned counsel for the respondents pointed out the fact that the petitioner once appeared at stage of interlocutory appeal filed by respondent No,2 namely Bahader Khan against the order passed by the trial Court dated 25-9-2004 regarding temporary injunction. The petitioner along with his counsel Fazal ur Rahman appeared before .The Appellate Court in the said appeal on. 14-10-2004 vide order Sheet No,3 but the same fact has been suppressed by the petitioner in his application moved before the trial Court for setting aside ex parte proceedings and the same fact also has been concealed before this Court too. He contended that appearing before lower appellate Court on 14-10-2004 confirms the knowledge of the petitioner regarding the proceedings of present case. Moreover, petitioner has not challenged his appearance under section 12(2) of C.P.C. If the same was due to misrepresentation or fraud.
7. Arguments heard and record perused, in the light of which my finding is as under.
8. There is no denial that the parties are the legal heirs of late Gul Zar. The petitioner though was in knowledge of proceedings in the present case at the time of interlocutory appeal filed by respondent No,2 namely Bahader Khan against the order of temporary injunction dated 25-9-2001.
He neither challenged the power of attorney submitted by his counsel Fazal-ur-Rahman and putting his appearance in the same proceedings on 14-10-2004 on the basis of misrepresentation and fraud under section 12(2) of C.P.C., hence petitioner is stopped due to his own conduct. The same fact has been concealed not only before the trial Court rather from the lower appellate Court as well as from this Court. The concealment of fact clearly suggests that the petitioner being the real brother of respondent No,1/plaintiff had deliberately suppressed the real fact from all the Courts on mala fide intention. The petitioner had not filed application for condonation of delay at the time of submitting application for setting aside ex parte proceedings. Today counsel appearing on behalf of respondents produced attested copies of proceedings before lower appellate Court wherein the petitioner and his counsel put his appearance on 14-10-2004.
9. In the light of above stated position and conduct of the petitioner especially concealment of fact from this court as well as from the lower Courts does not oblige any concession to the petitioner. I do not see any illegality or irregularity in the judgments/orders passed by learned lower Courts.
Resultantly, the instant revision petition is devoid of merits, therefore, dismissed.