J U D G M E N T.
SHAUKAT ALI MEMON, J:- In this petition dismissal order dated 20.10.2009 of respondent No.5 (IInd Additional District Judge, Karachi Central) passed in Civil Revision No. 27/2007 filed against order of respondent No.6 (IVth Senior Civil Judge, Karachi Central), has been impugned.
2. Civil Suit No. 310/2006 filed by the respondent No.1 for specific performance and mandatory injunction against the petitioners and official respondents was decreed as prayed wherein petitioners despite being served remained absent and did not file written statement thus were proceeded exparte. The judgment and decree was challenged by filing application under Section 12(2) C.P.C. which did not find favour with the respondent No.6 (IVth Senior Civil Judge Karachi Central) and the order was maintained by respondent No.5 in Civil Revision and has now been impugned through this petition.
3. The dispute relates to an immoveable property owned by petitioners which was allegedly agreed to be sold out to the respondent No.1 who filed the Suit for specific performance before respondent No.6 which was decreed as prayed as petitioners despite service failed to contest the suit and did not file written statement. The petitioners herein challenged decree through application under section 12 (2) CPC and was consequently dismissed by Respondent No.6 (IVth Senior Civil Judge Central Karachi) and was also maintained by respondent No.5(II Additional District Judge Central Karachi)in Revision which has now been impugned.
4. The main contention raised and argued on behalf of the petitioners is that they were not served effectively thus judgment and decree was obtained by way of fraud and misrepresentation. Per learned counsel the address shown in the title of the suit is incorrect thus respondent No.6 ought to have allowed the application under Section 12(2) C.P.C. and that the respondent No.5 fell in error by upholding the order of respondent No.6.
5. The perusal of the concluding para of the impugned order of respondent No.5 at page 41 reads as under :- Perusal of annexure "D" reveals that there is no mention that the applicant No.1 is not residing at the address mentioned in the plaint. He has not denied that at relevant time he was working at given official address. The applicant/defendant No.1&2 are real brothers who were properly served and were in knowledge about pendency of the suit as the applicant/defendant No.1 filed an application for adjournment which is available on the record of trial court, thereafter he did not pursue the matter. He has not denied that the application was not filed by him. The applicant/defendant No.1 was also served by way of pasting at alternate address of his job place. The TCS report shows that applicant/defendant No.2 himself received the court notice as such the respondent No.1/plaintiff has not obtained the exparte judgment and decree by way of fraud or misrepresentation of facts.
The record of the trial court further shows that when service upon applicants/defendants No. 1&2 was held good vide order dated 09.10.2006, one advocate namely Mr. Sardar Abdul Hameed Khan filed an undertaking on 23.01.2007 that he will file power/Vakalatnama on behalf of the applicant/defendant No.1. After holding service good the applicants/defendants No.1&2 failed to file written statement and did not appear before the trial court for the reason best known to him.
Perusal of the record of trial court further reveal that the respondent No.1/plaintiff has not played any fraud or misrepresentation of facts to the court and obtained judgment and decree in accordance with law as the applicant/defendant No.1&2 were served properly but they intentionally did not appear before the trial court to frustrate the ends of justice. The learned counsel failed to point out any illegality or irregularity in the impugned order. Consequently, this civil revision is dismissed being meritless. Parties shall bear their own costs.
6. We have carefully noted the above observations of the respondent No.5 (IInd Additional District Judge Karachi Central) that the petitioner No.1 filed an application for adjournment available on the record of the trial Court and that one Sardar Abdul Hameed Khan Advocate had filed an undertaking dated 23.08.2007 that he will file Vakalatnama on behalf of defendant No.1 (petitioner).
7. The further scrutiny of record and proceeding shows that the summons were issued at the office address of the defendant No.1 Azam Siddiqui as well as at his residential address. The bailiff's report reveals that defendant No.1 refused to receive the same.
8. The record further reflects that petitioners were served by bailiff, registered post and courier service. The petitioner No.2 was served at his residential address as well at his office address.
Moreover, one Sardar Abdul Hameed Khan Advocate filed an undertaking before the trial court on 23.01.2007 that he will file power on behalf of the petitioners, meaning thereby that the petitioners were well aware of the proceeding before the trial court.
9. The plea taken by the petitioners that they were unaware of the proceedings before the trial court is totally baseless as the petitioner No.2 was duly served with notice at his residential address given in the title of suit No. 310/2006 as well as at his office address. No element of fraud or misrepresentation appears to have been validly proved in the face of record of the trial court. On the contrary it was inaction and lethargic attitude of the petitioners in not pursuing their cause. At no stage of the proceedings petitioner did not dispute the reports of the post men, courier and bailiff and the fact of service at official address and engaging of the counsel who filed undertaking before the trial Court.
10. For what has been discussed above we are of the view that no grounds for interference with the concurrent findings of two courts below have been made. The instant petition merits no consideration, which is dismissed.
11. By short order dated 10.09.2014 we had dismissed the petition and above are the reasons thereof.