KARAM ELAHEH CHAUHAN, J.-Mst. Shamim Firdous and Adnan Afzal (respondents) on 21-5-1964 filed a suit for a declaration that they were the wife and the son of the present petitioner Major (now Lt. Colonel) Sher Afzal. The suit was fully contested and was ultimately decreed by the learned Civil Judge on 22-9-1969. A first and second, appeal of the defendant/petitioner were dismissed by the learned Additional District Judge and the High Court on 9-10-1970 and 8-3-1972 respectively.
The petitioner then filed an appeal in this Court being C. A. 162/72 which also failed and was dismissed by us by a very elaborate and comprehensive judgment and order dated 2-9-1980. See Major Sher Afzal v. Shamim Firdaus and another PLD1980SC228
2. The petitioner still did not feel satisfied and filed a review petition being C. R. P. No. 88-R/80. He also got filed a miscellaneous application bearing No. 5/81 from his second wife Mat. Khalida Sher Afzal for being made a party (in the review aforesaid) and praying for leading additional evidence of a particular type viz. "genetic test" and certain other evidence, and for holding a fresh inquiry and investigation etc. Which it was alleged would help in deciding the paternity of the child and correspondingly the marital status between the petitioner and Mst. Shamim Firdous.
3. Leaving aside the unnecessary details of the earlier fixation of the; case and various adjournments, ultimately the review application of Major Sher Afzal came up for hearing before a bench of this Court which was dismissed on 2-6-1981 by a short order which reads as follows:- "The Advocate-on-record for the petitioner was informed that no adjournment will be allowed and that he has to argue on behalf of the petitioner.
It is 12-45 p. m. No one is present for the petitioner. The review petition is dismissed in default. Stay order of 12th January, 1981, stands vacated."
4. On the next day then cane up the above referred to Civil Miscell--aneous application of Alsr.
Khalida Sher Afzal which was also dismissed for the various grounds mentioned in the order of this Court dated 3-6-1981. See Col. Sher Afzal v. Shamim Firdaus and another (1). Paras. 5 and 6 of that judgment are relevant. They read as follows:- "Para. 6.-Another thing to be noted is that when the main suit was filed, as pleaded in the present application and as its apparent tenor shows, Mst. Khalida Sher Afzal had already come into the wedlock of defendant Sher Afzal and fully knew about the institution of the suit, and not only that, but also had throughout remained in touch with it and helped her husband in contesting the points in controversy between the plaintiffs and the defendant. During all that period of 16 years when the case remained pending in various Courts she did not make any application for being added as a party, and put in the present application only when the litigation between the plaintiffs and the defendant had come to an end. The present application in these circumstances, does not merit any serious consideration, inasmuch as, it lacks bona fides and also suffers from want of locus standi, inordinate laches and delay. The applicant, who argued this case herself, submitted that the purpose of her applying for being made a party at this stage of the case, was, that she would like to help her husband by leading additional evidence in the form of what she has termed as a "genetic test" which according to her would be helpful in resolving the issue of the paternity of plaintiff No. 2 in the suit. Here it may be pointed out that this very prayer was contained in the Review petition filed by Sher Afzal and we fail to understand as to why he has put forward his second wife to repeat that prayer by this application. We do not think that there is any justification for reopening the case whichstands concluded by the judgment and order of this Court dated 2nd September, 1980, based on direct evidence. Oral and documentary etc. The applicant does not point out any error in our previous judgment and her main stress is on claiming a sort of retrial or re-opening of the case. If such like applications were entertained in this form and forum, from such disgruntled persons as the applicant is, at such a stage as has been mentioned above, then there will never be an end or finality to any litigation, because, after a case is concluded by the judgment and order of this Court, such like applications will start pouring in abundance by the relatives of the defendant one after theother. It may be pointed out that somewhat similar or analogous requests of the defendant for additional evidence were rejected in the main appeal. See paragraph 47 of the reported judgment in Major Sher Afzal v. Sharnim Firdous and another at page 279 PLD 1981 SC349 which reads as follows:- "Before parting with this case I may state that the defendant-appellant during arguments and particularly while closing his address again, prayed for a remand of the case for leading additional evidence and for recall and also for further cross-examination of some witnesses. This, it is obvious, is an attempt to prolong an already exceptionally prolonged litigation which started over sixteen years back and which the defendant wishes to drag on for the rest of the life of the parties or for a considerable part thereof. The effort seems to misuse the process of law for an ulterior motive. It is a well-contested case on the part of the defendant as will be evident from its bulky record and various types of points and pleas and evidence led from his side. There is no justification whatever to allow the reopening of the case at this late stage," and if we may now add, there is no justification to repeat the same prayer, this time through the applicant viz. The second wife of the defendant whom he has put forward with an ulterior motive to subject the respondents to an unwarranted harassment, and to keep them involved in litigation and in this way deprive them of the fruits of the decree which they obtained after the onerous litigation of sixteen years.
"Para. 7.-Taking up the application under adjudication as itself being one for review, it does not fulfil the well-known legal requirements and the grounds or causes on which a review can be claimed from this Court. Its close perusal shows that the applicant right from the beginning remained closely in touch with the whole litigation in which her husband lost the case; she virtually wants a retrial or in her own words and. In the application she has referred to the letters which the defendant had been writing to his first wife and states that these were simply " "that Adrian Afzal is not a son of Sher Afzal and had been adopting and using different description and nomenclatures at different time and if an inquiry is ordered about that lady, then her past, present and future, all will come out like a bright day. All such pleas and ,arguments have already been dealt with in the main judgment and there is no warrant to reopen or retry the same issues at the behest of the second wife of Sher Afzal."
5. However, Major Sher Afzal on 14-7-1981, then filed the present application for restoration of his review petition wherein he had taken same on similar pleas as his second wife had taken. He has argued the matter himself and has repeated the same pleas which were taken up earlier through hi telegram etc. For seeking adjournment on 2-6-1981 and which were not accepted. The order refusing adjournment on 2-6-1981 was a well-considered order and we do not find any ground to review or bypass the same. It appear that the petitioner wanted to thrust an adjournment on the Court according to his own wishes, for an ulterior purpose of prolonging a stay order which he had obtained from this Court on 12-1-1981 suspending execution or, continuation of certain other proceedings which had been initiated against him by his first wife etc. The Court was not satisfied about the bona fides of the request for adjournment or about the absence of the A. O. R. Or the learned counsel, who all according to the wishes of the petitioner chose to remain absent from the Court on the relevant date and at the relevant time. The Court in the circumstances was justified in passing the relevant order dated 2-6-1981 and there is now hardly any ground to by-pass it, or to set it aside. The petitioner in the context aforesaid, in our opinion, has not made out any sufficient cause for restoration of his application for review.
6. However, it may be pointed out that the petitioner in his present and also in review application has again prayed for holding of a "genetic test "It and 7014 leading of other additional evidence.
Apart from the fact that this --test-is not always conclusive, even otherwise as has already been held there is hardly any justification to resort to it in view of the copious direct, oral, documentary, and substantial evidence including various admissions of the petitioner on the question of fact involved in the case which has been maintained by four Courts of this country including this Court.
The prayer for this test was made by Mst. Khalida Sher Afzal as well and there is no justification for repeating the same prayer again in the present restoration application or the review application.
7. The result is that the present restoration application is dismissed hereby.Petition dismissed.
S. A. H.