1. ' AFTAB AHMED GORAR, J.--- Through this Civil Revision Application the applicant has challenged the judgment dated 28-3-2005 passed by learned Vth Additional District Judge, Karachi South whereby he dismissed Civil Appeal No,16 of 2002 filed by respondent No,1, DHA, and upheld Judgment dated 1-12-2001 and Decree dated 24-12-2001 passed by learned Vth Civil Judge, Karachi South in Civil Suit No,1409 of 1990 filed by respondent No,2.
2. ' Precisely the facts of the case are that respondent No,2 namely Sharafat Hussain Wasti filed a civil suit for permanent injunction against respondent No,1 and the applicant stating therein that he is the owner of Plot No,66, Khayaban-e-Roomi, Phase-VIII, Defence Housing .Authority, Karachi which he had purchased from its original allottee Captain Muhammad Younus son of Muhammad Hakim in the year 1976 who was allotted the said plot vide allotment letter dated 14-7-1976 issued by DHA.
3. Thereafter on the request of said Captain Muhammad Younus, DHA transferred the plot in favour of respondent No,2/plaintiff. On 25-2-1999 transfer/mutation letter was issued in favour of respondent No,2, who then started paying the development and other charges to DHA as and when demanded. However, when on 5-12-1990 he personally visited the office of DHA, he came to know that DHA was bent upon to cancel the transfer order of the suit plot and he was directed to surrender the suit plot. Upon his refusal, he was delivered a letter dated 10-12-1990. He, therefore, instituted the civil suit for permanent injunction.
4. ' The D.H.A. Contested the matter and filed written statement which was also adopted by the present applicant who was also arrayed as one of the defendants in the suit. In the written statement it was stated that the suit plot was transferred in favour of respondent No,2, Sharafat Hussain Wasti, on the conditional undertaking furnished by him. According to them, the original allottee refused to sign any letter of transfer. It was asserted that the allotment was obtained by fraud, therefore, he was bound to surrender the plot in question in accordance with his undertaking to the effect that in case of any dispute, the allotment of the plot may be cancelled. They further stated that the charges were being received from him till they received complaint from Major Muhammad Younus.
5. ' Learned trial court after framing of issues recording of evidence and hearing the parties, decreed the suit vide Judgment dated 1-12-2001 followed by Decree drawn on 24-12-2001. The said judgment and decree was challenged in appeal by DHA in which the present applicant was shown as respondent No,2. The appeal was dismissed vide Judgment dated 28-3-2005. Against the said judgment, this Civil Revision Application has been filed by Lt. Col. (R) Muhammad Younus who was respondent No,2 in the appeal and in the revision the DHA who had filed the appeal has been arrayed as respondent No, 1.
6. ' Learned counsel for the petitioner contended that the trial court as well' as appellate court erred in law and on facts while passing the impugned judgments/decrees; that the trial court had no pecuniary jurisdiction to entertain the suit; that both the courts below have acted in excess of their jurisdiction illegally and with material irregularities. He further contended that the impugned judgments are based on' surmises and conjectures and are the result of misreading and non- reading of material evidence. He further contended that the basic allotment order being illegal having been obtained by fraud, all subsequent transactions on the basis of such document are also illegal and not sustainable in law. He lastly contended that in the suit filed by respondent No,2 the person from whom he allegedly purchased the plot in question and got transferred the same was not made as a party as such the suit was not maintainable for non-joinder of necessary party.
7. He prayed for setting aside the impugned judgments and decrees. He relied upon the case-law reported in AIR 1941 Oudh 155, 1971 DLC 291 and 2007 CLC 160.
8. ' Learned counsel for respondent No,1 supported the contentions made by the learned counsel for the applicant and opposed the impugned judgments. According to him, respondent No,2 had himself given an undertaking that in case of any dispute, the allotment of the suit plot may be cancelled. He further contended that the jurisdiction of civil court is barred when the department is conducting lawful departmental proceedings.
9. ' Conversely, learned counsel for respondent No,2 supported the impugned judgments and decrees contending that the same have been passed in accordance with the law and norms of justice. He further contended that the revision application is not maintainable for the reasons firstly; the same having been filed against the concurrent findings and secondly; that the appeal out of which the instant revision has arisen was not filed by him but he was arrayed as respondent No,2 in the appeal and even in the appeal he did not put his appearance. According to him, the applicant did not assail the judgment and decree passed by the trial court as such the same attained finality so far as his Cause is concerned and he cannot file the revision application. He further contended that the appeal was filed by respondent D.H.A. But DHA did not challenge the judgment passed by the appellate court as such the judgment of the appellate court attained finality in respect of cause of DHA. He prayed for dismissal of the revision application. He relied upon the decisions reported in, 2000 SCMR 431, PLD 1995 SC 472, 2000 SCMR 974, PLD 1970 SC 506, 1997 CLC 176, 1995 SCMR 266, PLD 1982 Lahore 132, 1996 CLC 1620, 1991 MLD 437 and PLD 1985 Lahore 112.
10. ' I have heard learned counsel for the parties and with their assistance have gone through the material placed on the record.
11. ' In the instant case in the suit filed by respondent No,2 namely Sharafat Hussain Wasti, DHA and Major Muhammad Younus son of Muhammad Ibrahim the present applicant, were arrayed as defendants Nos.1 and 4 respectively. In the suit DHA had filed written statement whereas present applicant adopted the W.S. Filed by DHA. The suit was decreed against which the present applicant did not file any appeal and even although he was arrayed as respondent No,2, did not appear before the appellate court. In the circumstances, the judgment and decree passed by the trial court attained finality so far as the cause of present applicant is concerned. Again, when the appeal was dismissed, it was not challenged by the appellant viz. DHA, on the other hand the revision application challenging the appellate order was filed by the said Muhammad Younus son of Muhammad Ibrahim who, at all, did not appear before the appellate court. In the circumstances, it is apparent that firstly; the revision application has been filed by an incompetent person and secondly; the judgment passed by the appellate court attained finality so far as the cause of DHA is concerned..
12. ' The plea of ignorance of the proceedings at any stage cannot J,.,! Taken either by DHA or by the present applicant as, from the perusal of the record, it appears that Mr. Nazar Hussain Dhoon advocate was appearing in the suit before the trial court for both, the defendant No,l. DHA respondent No,1 herein, as well as defendant No,1, Muhammad Younus son of Muhammad Ibrahim viz. The present applicant, as is evident from the amended written statement filed on behalf of DHA copy whereof is available at page 171 of the case file of instant revision application which has been signed by Mr.Nazar Hussain Dhoon as an advocate for DHA as well as from written arguments filed on behalf of Major Muhammad Younus the present applicant .Which has also been signed by Mr. Nazar Hussain Dhoon advocate copy whereof is available at page 259 of the case file of Revision Application. This speaks volume about the conduct of the present applicant as well as the DHA.
13. Yet there is another aspect of the case. Now it is well-settled that revisional jurisdiction of this Court has very limited scope and it can be exercised only in those cases where subordinate court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. In the case reported in 2001 SCMR 789 honourable Supreme Court held as under:- "It is now firmly settled law that findings of facts recorded by the First Appellate Court based on appraisal of evidence and raising of inferences in, its discretion could not be interfered with under section 115, C.P.C. Merely because a different view was also possible to be taken, therefore, the impugned judgment of the High Court suffers from want of jurisdiction."
14. ' In another case reported in PLD 1994 SC 291 the honourable Supreme Court held that the concurrent findings of fact of two, courts below could not be disturbed by High Court either in second appeal or in revisional jurisdiction unless Courts below while recording finding of fact had either misread the evidence or had ignored any material piece of evidence on record or the same was perverse --- Jurisdiction of High Court to interfere with concurrent findings of fact in revisional jurisdiction was narrower, it could only interfere with the order of subordinate Court on ground that Court below had assumed jurisdiction which did not vest in it, or had failed to exercise jurisdiction vested in it by law or that Court below had acted with material irregularity affecting its jurisdiction in the case and the High Court under revisional jurisdiction can only correct jurisdictional errors of Courts below -Fact that High Court while reappraising evidence on record reached a conclusion different from that arrived at by two Courts below, such fact could never be a ground justifying interference with a finding of fact muchless a concurrent finding of fact recorded by Courts below on basis of evidence produced, before them.
15. ' In the instant case the applicant has not been able to establish that the two courts below had either misread the evidence or had ignored, any material piece of evidence on record or that their finding was perverse, nor he has been able to show any jurisdictional error in the judgments of the two courts below. On the contrary I find that two courts below after elaborately discussing the evidence and pleadings of the parties, have come to a right conclusion.
16. ' So far as the merits of the case is concerned, it appears that during the trial the plaintiff stated that he had purchased the suit plot in the year 1976 from Captain Muhammad Younus son of Muhammad Hakim. He produced copy of allotment letter dated 14-7-076 issued in favour of Muhammad Younus. He placed before DHA a transfer application/affidavit, duly signed by the original allottee in his favour. He further stated that DHA was receiving dues from him in respect of the suit plot, however when he visited the DHA Office, he came to know about the dispute and then DHA threatened cancellation of the allotment, hence he filed the suit.
17. ' On the other hand, D.W. Muhammad Abdullah Khan was examined by DHA. He deposed that on 18-6-1976 Captain Muhammad Younus son of Muhammad Hakim having PSS No,14667 applied for allotment of the plot in DHA and after a meeting of the Managing Committee held on 22-6-1976, he was allotted the plot. In 1980 Captain Muhammad Younus sold out the plot to the plaintiff/respondent No,2 but he did not appear in DHA Office with regard to transfer of the suit plot, however on the undertaking of the plaintiff/respondent No,2 the suit plot was transferred in his name, Thereafter, one Major Muhammad Younus son of Muhammad Ibrahim, the present applicant, on same PSS No,14647 made an application for allotment of plot in the month of October, 1990 but he was regretted that a plot has already been allotted on the same PSS number, however, he denied to .Have obtained allotment and membership. Thereafter DHA confirmed that the said Muhammad Younus son of Muhammad Ibrahim was a genuine person. Thereafter they sent letter to the abovesaid Muhammad Younus son of Muhammad Hakim which was returned undelivered. In his cross-examination he admitted that they did not confirm from the concerned Formation Commander as to whether Caption Muhammad Younus son of Muhammad Hakim, the person from whom the plaintiff/respondent No,2 allegedly purchased the suit plot, was a genuine Army Officer.. He also admitted that after selling the suit plot, the said Muhammad Younus son of Muhammad Hakim submitted mutation application in DHA Office. He also admitted that after transfer of the suit plot, they received dues from the plaintiff/respondent No,2 upto 1-10-1990 ' From the above, it is crystal clear that respondent No,2 was a bona fide purchaser against sale consideration and he had been paying dues which were being accepted by DHA. If, for the sake of arguments, the plea of the applicant and DHA is accepted that the said Muhammad Younus son of Muhammad Hakim was not a genuine person and he had obtained the suit plot by fraud from DHA, even it was due to the negligence of the Authority as admitted by their witness for which the plaintiff/respondent No,2 could not be penalized who had purchased the plot for consideration.
18. Regarding the plea of the applicant that the plaintiff/respondent in his suit did not implead the original allottee namely Muhammad Younus son of Muhammad Hakim who was a necessary party as such the suit was not maintainable on this score, suffice it to say that no civil proceedings in a Court of Law would be defeated due to misjoinder or non-joinder of necessary party. In this context reference may be made to 2009 SCMR 1368 and 2004 CLC 782.
19. ' The case-law relied upon by the learned counsel for the applicant is of no help to the applicant having distinguishable facts whereas there is weight in the case-law relied upon by the learned counsel for respondent No,2.
20. ' In view of above discussion, the Revision Application merits dismissal being not maintainable.
21. Order accordingly.
22. ' Above are the reasons for short order passed on 17-4-2013. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.