AZIZ-UR-REHMAN, J.---By means of this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 23.09.2017, the Petitioner viz. Khursheed Ali son of Habib-ur-Rehman (late), as being one of the legal heirs of the deceased, Habib-ur-Rehman upon becoming dissatisfied with the consolidated judgment and decree dated 28.05.2016, order dated 15.09.2017, passed by Senior Civil Judge, Karachi South and order dated 22.09.2017, passed by IIIrd Additional District Judge, Karachi, South, have questioned/impugned the same with the following prayers::--- A. To call R&Ps of Civil Suit No,414/201, Civil Suit No,50/2012 and the Civil Revision No,48/2017 and set aside impugned order dated 28.05.2016, set aside order dated 15.07.2017 and order dated 22.09.2017.
B. To direct the Respondent No,2 not issue the police aid against the Petitioner till the final decision of this petition.
C. To restrain the Respondents Nos, 3 to 5, his agents, subordinates, servants, employees, attorney(s) or any other person on his behalf to not harass, threatened and give mental torture to the Plaintiff, illegally, unlawfully and without due course of law. Further restrain the Defendant to not dispossess illegally to the Plaintiff from the suit property Viz. Plot No,A-41, measuring 240 Square Yards constructed Ground + 2 Storeys in any manner, whatsoever in nature, without due course of law.
D. To grant permanent injunction against the Respondents Nos, 3 to 5, thereby restraining them, their agents, servants, colleagues, representatives and/or anybody else acting through them and on their behalf to create third party interest in respect of the suit property i,e, Plot No,A-41, measuring 240 Square Yards constructed Ground + 2 Storeys in any manner, whatsoever their nature. [Emphasis supplied] E. Any other relief this Honourable Court deems fit and proper under the facts and circumstances of the case. Also grant the favour to the Petitioner to secure from the hands of the respondents.
2. The facts, in brief of this case are as follows:-
3. The Petitioner is one of the legal heirs of deceased Habib-ur-Rehman son of Mussali Khan who passed away sometime in the year, 2009. The deceased/father of the petitioner, as averred, was the real brother of Respondents Nos, 3 to 5 and, as claimed, was also co-sharer in the immovable property bearing Plot No,A 41, measuring 240 Square Yards Plus construction i,e, Ground + 2 Storeys Building raised thereon in the years. 19961997 [here-in-after referred to as subject property].
4. Per assertions made in 'Para 4' of the Memo of Petition [In short Mon the aforesaid immovable property ['subject property], was purchased by the grandmother of the petitioner ,rom the savings and income of all her 04 sons only. The 'subject property', however, was purchased and registered in the name of Respondent No,3 viz. IMTIAZ ALI SON OF MUSSALI KHAN.
5. On account of a civil dispute arisen between the four [4] real brothers in respect of the 'ownership' of 'subject property', the Respondent No, 3, herein, finally filed a Civil Suit No, 414 of 2011 against their real brothers Imtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan, 'inter alia' seeking therein, sole ownership of Plot No,A-41, measuring 240 Square Yards Plus 2 Storeys building constructed thereon. Per averments, the Plaintiff/ Respondent No,3 herein, is the absolute/exclusive owner of the 'subject property'. The prayers sought in the aforesaid suit read as follows: - a). To declare the Plaintiff is the lawful allottee of the plot and owner of the building constructed upon it. b). To direct the defendant No-1 and defendant No-2 to vacate the premises and hand over the vacant physical possession of the ground floor and First Floor of the suit property. [Emphasis supplied] c). To give permanent injunctions to the defendants, not to interfere in the possession of the plaintiff thereafter. d). Cost of the suit.
Any other relief or reliefs which this Hon'ble Court deem fit and proper.
6. Upon service, the Defendants/ Respondents Nos,4 and 5 herein, filed their `written statement'[s] wherein, the claim of 'ownership' of the Plaintiff/Respondent No,3 herein, in respect of the 'subject property' was vehemently and specifically denied. In the 'written statement'[s] filed by the Defendants it was also claimed that the 'subject property' is a 'joint property' of all the four [4] brothers namely: [i]. Imtiaz Khan, [ii]. Nawaz Khan, [iii]. Mumtaz Khan, and [iv]. Habibur Rehman [since deceased], all sons of Mussali Khan.
7. Apart from their 'writtenstatement[s]', the two [2] Defendants in Civil Suit No,414/2011, also opted to file a Civil Suit No,50 of 2012 [Nawaz Khan and Mumtaz Khan v. Imtiaz Khan, Habib-urRehman [since deceased], through his legal L.Rs, i,e, [i] Mst. Fari Zadgai - widow, [ii] Arshad - Son, [iii]. Sonia - Daughter, and [iv]. Romesa-Daughter [minor], through her mother viz. Mst. Fari Zadgai. In Suit No,50/2012, 'inter alia' a declaration was sought, it appears, to the effect and extent that the 'subject property' bearing Plot No,A-41, measuring 240 sq. yds. Plus building constructed thereon, is a Joint property' of the parties and they are thus co-owners of the 'subject property'.
8. Keeping in view the divergent pleas/stand taken by the parties in the above two [2]. Civil Suits, 'consolidated' and 'additional consolidated issues' were framed/settled by the Court on 22.02.2014 and on 01.04.2014 respectively. Besides, the Civil Suit No,414/2011 [old in time], was treated as a leading suit. The 'consolidated' and 'additional consolidated issues'
'CONSOLIDATED ISSUES'
Whether the plaintiff is lawful allottee of the plot and owner of the building, if yes to what extent?
Whether the plaintiff is in possession of the suit property?
3. Whether plaintiff is entitled to the relief claimed?
4. What should the decree be? 'ADDITIONAL CONSOLIDATED ISSUES'
1. Whether the plaintiff in leading suit is the sole owner of the suit property or it is a joint property of the parties to the suit and the defendants are co-owners?
2. Whether Agreement dated 26.3.2009 was executed and signed by the parties to the suit and they are bound by its terms and conditions?
3. Whether the building was constructed by the defendant No,1 and on the construction of the building the defendant No,1 spent Rs,16,50,000/- from his own pocket and he is entitled for the said amount with the profit.
9. Thereafter, in 'pro' and 'contra' of the aforesaid 'consolidated' and 'additional consolidated issues', the plaintiff viz. Imtiaz Khan, examined himself as 'Exh.P-1' and also produced various documents including property tax paid receipt/challan for the year, 2009-2010 as 'Exh-P/39' and transfer/mutation 'order as 'Exh-P/41' in his 'examination-in-chief as 'Exh.P-2' to 'Exh.P-43'. Besides, the plaintiff also produced and get examined three [3] more witnesses, namely, [i] Faqeer Hussain son of Mazhar as 'PW-1', [ii] Habib-ur-Rehman son of Jaffer Khan as 'PW-2' and [iii] Shams-uz- Zaman as 'PW-3'. Per record, all the four [4] witnesses were also 'cross-examined' and thereafter, the plaintiffs side of evidence was closed. Upon closing the plaintiffs side of eviderice, Defendant No,1 viz. Nawaz Khan son of Mussali Khan filed his 'affidavit-in-evidence' as ' Exh. D-1 ' Besides, Defendant No,2 viz. Mumtaz Khan son of Mussali Khan and other two [2] witnesses, namely, Qaim Khan son of Sher Khan and Munawar Khan son of Khairullah had filed their 'affidavits-inevidence' and thereon, they were also 'cross-examined'. Upon conclusion of Defendant's evidence, the Defendants' side of evidence was also closed.
10.Later on, when the above two [2] 'consolidated suits' came-up before the 1st Senior Civil Judge, Karachi South, then parties' counsels were heard. The learned 1st Senior Civil Judge, Karachi South, upon hearing of arguments and appreciating of the evidence/ materials available on record, given his 'issue-wise' findings on 28.05.2014 as under: - FINDINGS ISSUE NO. 1 AFFIRMATIVE ISSUE NO. 2 AFFIRMATIVE ISSUE NO. 3 AFFIRMATIVE ISSUE NO. 4 SUIT BEARING NO. 114 OF 2011 STANDS DECREED AS UNDER CONSOLIDATED ADDITIONAL ISSUES ISSUE NO. 1 IN FAVOUR OF PLAINTIFF (IN LEADING SUIT)
ISSUE NO. 2 NEGATIVE ISSUE NO. 3 NEGATIVE
11. From the detailed and well-reasoned 'Consolidated Judgment' dated 28.5.2016, the following portion for ready reference and convenience purpose is reproduced herein-below: - "Thus, the entire claim of the defendant No,1 stood on some vague bills/vouchers/letter heads [Ex- D1 to D-58], whose credibility/ authenticity as evidence can be well ascertained from the fact that the defendant No,1, Muhammad Nawaz himself admitted during cross-examination it is correct that in some of the bills, the name of the shopkeeper and shop is not disclosed', 'it is correct that some of the letterheads produced as exhibits are given to the shopkeepers by the manufacturers for use', 'it is correct that Exhibits 'D-1' to 'D-16' show my entire accounts of construction', it is correct that the accounts book [Ex-D1 to D16] is not signed', 'it is correct that anybody can produce such a copy', it is correct that there is overwriting on some of the cash memos', 'it is correct that writing on the letter head produced by me from Annexure-'D/17' to 'D/58' is mine', and 'it is correct that I worked with Aziz Khan as Manager / Accountant and maintained his record', and 'it is correct that I was responsible for purchase of construction material'.
And even otherwise, no prayer for return of Rs,16,50,000/- (Rupees sixteen lakh fifty thousand) purportedly spent by the defendant No,1 on the construction of the suit property/building from his own pocket was made in the prayer clause of plaint in suit bearing No,50 of 2012 filed by the defendants and no relief can be granted in respect of a claim, which is not sought in the prayer clause. Accordingly, this issue is replied in negative." [Emphasis provided]
12. While, answering Issues Nos,1, 2, 3 and 4 in 'AFFIRMATIVE', the leading Suit No,414/2011, filed by Imtiaz Khan [Respondent No,3 herein], was decreed through the impugned 'consolidated judgment' and 'decree' dated 28.05.2016. As far as, Civil Suit No,50/2012, filed by Nawaz Khan and Mumtaz Khan [Respondents Nos,4 and 5 herein] is concerned, in view of 'NEGATIVE FINDINGS' on Issues Nos,2 and 3 under the heading of the 'consolidated additional issues' the same was dismissed, however, with no order as to costs. The operative part of the 'consolidated judgment' dated 28.05.2016 reads as follows:-- "In view of the above reasons and findings, the leading suit bearing No,414 of 2011 filed by the plaintiff, Imtiaz Khan son of Musali Khan stands decreed in favour of the plaintiff against the defendants as per prayer clauses (A), (B) and (C) of the plaint. However, the other suit bearing No,50 of 2012 filed by the defendants, Nawaz Khan son of Musali Khan and Mumtaz Khan son of Musali Khan stands dismissed. [Emphasis supplied] There shall be no order as to costs.
Let such decree be prepared within seven days hereof"
13. The Petitioner in view of passing of a Decree in Suit No,414 of 2011 [Imtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan] and of the dismissal of Suit No,50 of 2012 [Nawaz Khan and Mumtaz Khan v. Imtiaz Khan and Habib-ur-Rehman [since, deceased], having been sued through his legal heirs instead of filing appeal against passing of the 'consolidated judgment' and 'decree' dated 28.05.2014, opted to file three [3] applications on 14.07.2017 after more than two [2] years. The prayers sought in the said three [3] applications read as follows: Application under Order I, Rule 10 read with section 151, C.P.C. with a prayer for joining the petitioner as a party in the aforesaid 'consolidated suits'.
[ii] Application under Order XXI, Rule 26, C.P.C. filed in Ex. No,08/2016 arising out of consolidated judgment and decree passed on 28.05.2016 for staying the execution proceedings before Ist Senior Civil Judge, Karachi South. [the suit was decreed on 28.05.2016]
[iii] Application under section 12(2) C.P.C. read with section 151, C.P.C. for setting aside / recalling the 'consolidated judgment' and 'decree' passed in Civil Suit No,414 of 2011 [Imtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan] and Civil Suit No,50 of 2012 [Nawaz Khan and Mumtaz Khan v. Imtiaz Khan, Habib-ur-Rehman (since deceased)], through his L.Rs, which 'consolidated judgment' and 'decree' according to Petitioner's version was obtained by their uncles namely [i]. Imtiaz Khan, [ii]. Nawaz Khan and [iii]. Mumtaz Khan through playing 'fraud', 'misrepresentation', 'suppression' and 'concealment ,of real facts' in respect of title, possession of the petitioner's share, who as claimed, is one of the legal heirs of petitioner's deceased father viz. Habib-ur-Rehman.
14. At this juncture, it is significant to note, that all the legal heirs of the deceased Habib-ur- Rehman, per record, are/were Defendants in one of the two [2] 'consolidated suits' i,e, Suit No,50/2012, as Defendants No,2[ajlb][c] and [dl. The petitioner herein, however, alleges that in Suit No,50/2012 filed by their two [2] uncles against his third uncle viz. Imtiaz Khan son of Mussali Khan and all the legal heirs of deceased's father of the Petitioner viz. Habib-ur-Rehman, the petitioner's name, was wrongly mentioned, as Arshad instead of Khurshid Ali. The consolidated 'Judgment' and 'Decree' on this score alone, is liable to be set aside along with other impugned orders. The Petitioner and/or the other legal heirs of Habib-ur-Rehman [late] who were parties to Civil Suit No,50 of 2012, however, did not file any appeal against the consolidated 'Judgment' and 'Decree' passed on 28.05.2016, the same, as such, attained FINALITY.
15.For appreciating the stand of the Petitioner, we would like to reproduce herein 'Para 6' of the 'affidavit' in support of the application under Section 12(2), C.P.C. read with section 151, C.P.C., as under-:- "6. That I say that in Civil Suit No,50 / 2012 my name is wrongly mentioned as Arshad, and I have been mentioned as a legal heir of the deceased Habib ur Rehman/ defendant No, 2 by the plaintiffs of the above said suit and the defendant No,1 namely Imtiaz Khan son of Musalli Khan filed fake, forged and false Vakalatnama, Power of Attorney, Written Statement as well as Statement on Oath of legal heirs' and widow of the deceased defendant No, 2 on my behalf which is neither in my knowledge nor I have ever signed the Vakalatnama, Written Statement, Statement on Oath and/or the so-called Power of Attorney." [Emphasis supplied] 16.Apart from the above, non-issuance of any notices/summons have also been alleged. For and in view of these assertions, the petitioner is alleging 'fraud' and 'misrepresentation' on the part of plaintiff and Defendants' uncles [Respondents Nos,3 and 4 herein] in the aforesaid two civil suits.
On 15.07.2017, when the petitioner's application under Order I, Rule 10, C.P.C., filed in the long ago decreed Suit No,414 of 2011 when, came-up before the learned Senior Civil Judge-I, Karachi then, the following order was passed:-- "Heard the learned counsel for the proposed intervenor and perused the case record. Although the applicant, Khurshid Ali son has sought to be joined as an intervener, claiming himself to be the co- sharer and in possession of a portion of the subject-property, he has not annexed any documentary proof of either his possession or ownership of the suit-property along with this application. and his claim is based on mere vague verbal assertions, which do not merit any consideration. As far as the record of the case is concerned, the consolidated civil suit bearing No,414 of 2011 was decreed in favour of the plaintiff/DH on 28.05.2016 on merits after being thoroughly contested by the defendants and a decree, acknowledging /. endorsing ownership of the D/H with consequential relief of possession as well permanent injunction was passed against the defendants/JD,. whose consolidated Civil Suit bearing No, 50 of 2012 was simultaneously dismissed through consolidated judgment, which has now attained finality after expiry of appeal period. Subsequently, civil execution bearing No,08 of 2016 was also filed by the DH and allowed after hearing and application for issuance of writ of possession was also filed, which is fixed today for orders. At this stage, filing of any such application by a person without any documentary proof of his locus standi appears to be simply an attempt to delay the proceedings in execution and depriving the plaintiff/DH of the fruits of the judgment/decree. Consequently, the application in hand stands dismissed." [Underlining is ours]
17. Apart from the above, two [2] more applications under Order XXI, Rule 26, C.P.C. for stay of the Execution Application and the application under section 12(2), C.P.C. read with section 151, C.P.C., alleging therein'fraud', 'misrepresentation', 'suppression' and 'concealment of real facts' were also found meritless/without any substance, as such, the same were dismissed vide order dated 14.07.2017 and 15.07.2017 respectively. The Petitioner, thus again feeling himself 'aggrieved' and dis- satisfied' opted to file a Civil Revision Application bearing No,48 of 2017 [Khurshid Ali son of Habibur-Rehman [late] v. Imtiaz Ali, Nawaz Khan and Mumtaz Khan [who were/are the real brothers of the Petitioner's deceased father and uncles of the Petitioner], wherein, the Petitioner challenged/impugned not only the 'consolidated judgment' and 'decree' dated 28.05.2016, but also impugned the other three [3] orders, whereby, the Petitioner's applications under Order XXI Rule 26, C.P.C., under Order I Rule 10, C.P.C. and the application under section 12(2), C.P.C. read with Section 151, C.P.C. were dismissed.
18.Along with the said Revision Application, it appears, an application under Order XXXIX, rules 1 and 2 C.P.C. read with section 151, C.P.C., was also filed. On 05.08.2017, when, the said 'REVISION APPLICATION' No,48 of 2017 [Khurshid Ali son of Habib-urRehman v. [i]. Imtiaz Khan, [ii]. Nawaz Khan and [iii]. Mumtaz Khan along with the 'INJUNCTION APPLICATION' came-up before the Court, then the following order was passed:-- "By this order I intend to grant interim injunction against the Respondents thereby restraining them, their agents, servants, friends, companions, colleagues, persons, representative, workers, attorneys and / or anybody else acting on their behalf or in their name from illegally not to threat, harassm ent and police aid, in any manner without due course of law and or creating third party interest in the same in any manner whatsoever in nature till next date of this Court. Therefore, if this temporary suspension is not granted in the favour of the Appellant it would cause him irreparable loss. Put off to 16.08.17."
19.Subsequently, on 22.09.2017, when again the Civil Revision Application filed under section 115, of C.P.C. came-up before the learned IIIrd Additional District Judge, Karachi South, then upon hearing the arguments of parties' counsel in 'pro' and 'contra' on the Civil Revision Application No,48 of 2017 [Khurshid Ali son of Habib-ur-Rehman (late) v. Imtiaz Ali, Nawaz Khan and Mumtaz Khan], was pleased to dismiss the same and resultantly, the stay order/interim injunction granted on 05.08.2017, was vacated. Being relevant for convenience purpose the 'operative part' of order dated 22.09.2017, passed in C.R No,48 of 2017 is reproduced herein-below: - "Order could be revised under this section in cases involving illegal assumption,non-exercise or irregular exercise of jurisdiction. It cannot be invoked against the conclusion of law and fact, which do not in any way affect the jurisdiction of the Court, matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. An erroneous conclusion of law or fact is liable to be corrected in appeal but revision will not be competent on such a ground, unless in arriving at such conclusion an error of law has been committed. Neither any aspect has been put forward or highlighted or is seeming available so as to attract or entail provision of section 115, C.P.C., therefore, the same could not come into play in the present case." [Underlining is ours] In the light of above mentioned, discussion, I am of the concrete view that the three impugned orders passed by the Trial Court were decided on merits and the revision application is hereby dismissed.
Consequently, an application for the appointment of Nazir and application Under Sections 3 and 4 of Contempt of Court Act or also being disposed of without any order as this Court has no jurisdiction to decide the same, while deciding a revision application. The stay granted earlier by this Court is hereby vacated." [Emphasis supplied].
20.The Petitioner herein once again feeling 'dis-satisfied' and 'aggrieved', has approached this Court through the instant Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, inter alia, for setting aside the impugned 'consolidated judgment' and 'decree' dated 28.05.2016, Orders dated 15.07.2017 and 22.07.2017, passed by the Courts below. On 03.10.2017, while, granting the urgent application parties were directed to 'maintain status-quo' till 31.10.2017 for which date notices had already been ordered to be issued to the Respondents as well as Addl. A.G. Sindh, as per Order dated 27.09.2017.
21.On 14.11.2017, when the above writ petition came-up before us then, we heard Mr. Muhammad Nasim Shad, learned counsel for the Petitioner, Syed Miran Muhammad Shah, learned Addl. A.G.
Sindh for Respondents Nos,1 and 2, Mr. Muhammad Arif Khan, learned counsel for Respondent No,3 and Respondents Nos,4 and 5 in person and also gone through the available record with their assistance.
22.Learned Counsel for the Petitioner forcefully contended that not only the impugned consolidated judgment and decree passed on 28.05.2016, by the learned Trial Court whereby, leading Civil Suit No,414 of 2011 was decreed and Suit No, 50 of 2012 was dismissed are liable to be set-aside on the ground of 'fraud', 'misrepresentation', 'suppression' and 'concealment of facts' but also Orders both dated 15.07.2017 whereby, the two [2] applications under Order I, Rule 10, C.P.C. and under section 12(2), C.P.C. read with Section 151, C.P.C. respectively were dismissed by the learned trial Court i,e, learned Senior Civil Judge-I, Karachi, South and Order dated 22.09.2017 passed by the learned IIIrd Addl. District Judge, Karachi South whereby, the Civil Revision Application No,48 of 2017, filed by the Petitioner herein, were dismissed.
23.Per learned counsel , though all the legal heirs of deceased Habib-ur-Rehman were joined in Civil Suit No,50 of 2012 as Defendants No,2(a)(b)(c)(d) but name of Petitioner as claimed was wrongly mentioned, as Arshad instead of Khursheed Ali in the said Civil Suit No,50 of 2012. Per Petitioner's version the mentioning of incorrect/wrong name amounts to 'fraud' and 'misrepresentation', on the part of Plaintiffs [Respondents Nos,4 and 5 herein]. Needless to say, Suit No,50 of 2012 was filed by Nawaz Khan and Mumtaz Khan against Imtiaz Khan and Habib- urRehman [since, deceased] through his legal L.Rs,]. The said Suit No,50 of 2012 though has been dismissed through the consolidated 'Judgment' and 'Decree' dated 28.05.2016, perhaps at the whims of Respondents Nos,4 and 5 herein. Apart from the above, the Plaintiff viz. Imtiaz Khan [Respondent No,3 herein], according to Petitioner has/had also committed 'fraud' 'misrepresentation'. 'suppression' and 'concealment of real facts' as the said Plaintiff in Suit No,414 of 2011 has failed to join the LRs of the deceased Habib-ur-Rehman. The passing of consolidated 'Judgment' and 'Decree' dated 28.05.2016, against Nawaz Khan and Mumtaz Khan in terms of Prayer Clauses ['A] [B] and [.C.] in Suit No,414 of 2012 [Imtiaz Khan v. Nawaz Khan and Mumtaz Khan] is thus liable to be set-aside.
24.Conversely, Mr. Muhammad Arif Khan, learned counsel for Respondent No,3 viz. Imtiaz Ali vehemently argued that the instant 'Writ Petition' as 'framed' and `filed' in the year, 2017, against the consolidated 'Judgment' and 'Decree' dated 28.05.2016 and other 'impugned orders' of 15.07.2017 and 22.09.2017, besides, being 'mis-conceived., 'mis-leading and devoid of any merits. Per learned counsel, the impugned consolidated 'Judgment' and 'Decree' dated 28.05.2016 is not only lawful, but has also been passed on merits and that too, after proper evaluation/ appreciation of materials/evidence on record. In view of this position, the impugned consolidated 'Judgment' and 'Decree' dated 28.05.2016 warrant no interference of this Court at all. Like-wise, the other 'impugned orders' having been validly passed after proper appreciation of evidence and other materials in its' true perspective in no event are liable to be set aside. Lastly, learned counsel urged that in case, the instant Petition is not dismissed then Respondent No,3 shall be seriously prejudiced.
25.Learned Addl. A.G. Sindh while, defending the impugned consolidated 'Judgment' and 'Decree' dated 28.05.2016, as well as, the other 'impugned orders' passed by Respondents Nos,1 and 2 respectively, urged / prayed for dismissal of the instant Petition, as the same besides being without any substance merits no consideration 26.Heard.
27. Before proceeding further at this juncture, we would like to mention herein, that as per record available before us, none of the parties to the consolidated 'judgment' and 'decree' dated 28.05.2016, bothered to file any appeal against the said consolidated 'Judgment' and 'Decree' dated 28.05.2016. It is needless to say, the application under section 12(2), C.P.C. is not a substitute of an Appeal. The consolidated 'Judgment' and 'Decree' of 28.05.2016, passed long ago, has already attained 'finality'. Even the Petitioner in his capacity as being one of the LRs' of deceased Habib-ur- Rehman [who alleges that his name was wrongly mentioned in Suit No,50/2012], as ARSHAD instead of KHURSHEED ALI], has also failed and/or avoided to challenge the 'consolidated 'judgment' and 'decree' dated 28.05.2016 by way of filing an appeal. The Petitioner amongst others thus sealed his/their own fate. Reliance in this regard can be placed on the case of Happy Family Associate through Chief Executive Y. Messrs Pakistan International Trading Company [PLD 2006 SC 226]. The relevant extract whereof reads as follows: "8. The petitioner-defendant sealed his own fate by not challenging the judgment and decree of the High Court dated 18-5-2000 passed in R.F.A. No,53/2000, dated 23-1-2001 and passed in R.F.A.
No,509/2001 whereby the High Court upheld the decree in the sum of Rs,1,01,87,500. That decree attained finality and the arguments now being submitted against this decree could have been examined if the petition for leave to appeal/ appeal against the decree was filed in this Court.
Application under section 12(2) or under section 151, C.P.C. is no substitute to regular appeal or revision or review nor these provisions can be construed as something over and above the normal modes of questioning a decree by way of appeal, revision or review, It is unfortunate that some litigants attempt to frustrate the decree/its execution by resorting to provision of section 12(2) and section 151, C.P.C. unnecessarily." [Emphasis supplied] 28.Further, in the case in hand, it is worth to note, that the two [2] suits i,e, Suit No, 414 of 2011 and Suit No, 50 of 2012, were admittedly 'consolidated' by the trial Court and after framing of 'consolidated issues'/'additional consolidated issues', Civil Suit No,414 of 2011. filed earlier in time, was also then treated as a leading suit. The parties thereafter, led their evidence in 'pro' and 'contra' of the said 'issues' and finally, the two [2] Civil Suits were decided by a consolidated 'Judgment' and 'Decree' dated 28.05.2016, passed by learned trial Court though was challengeable through a single appeal, but none of the parties to the said consolidated two [2] Civil Suits bothered to file any appeal. In this regard reference can be made to the case of Allah Bakhsh v. Mst. Shamshad Zohra and others [1985 SCM R 959], wherein it was observed as follows:-- "....the technical objection of filing of a single appeal against a consolidated judgment when it was manifestly directed against the decision in both, would not stand in the way of adjudication in accordance with law". [Emphasis supplied] 29.Per record, it seems that the Petitioner filed an application in the aforesaid two [2] consolidated Civil Suits before the trial Court on 20.01.2015, for seeking permission to file an 'affidavit-inevidence'. The said application of the Petitioner as transpires from impugned Order dated 22.09.2017 was allowed by the learned trial Court but the Petitioner, thereafter, avoided to come forward and lead evidence by means of filing an 'affidavit-in-evidence'. This factum is quite evident from reading of Order dated 22.09.2017. whereby, the Civil Revision No,48 of 2011 was dismissed. The relevant portion therefrom reads as follows:-- "...Perusal of the record of the cases before trial Court also, reveals that the applicant also filed an application under the caption of 151, C.P.C. dated 20.01.2015 to file affidavit in evidence. The said application was allowed by the learned Trial Court but the same was not filed which make me concrete in my decision that the applicant was present before the Trial Court throughout the trial proceedings for almost four years and did not put his defence before the Trial Court intentionally although given due chances..." [Emphasis supplied]
30. As far as the application under Order I, Rule 10, C.P.C. is concerned, in our view, the same was rightly dismissed through the 'impugned Order' dated 15.07.2017, passed by learned Senior Civil Judge-I, Karachi South, as it was not entertainable/maintainable in the 'disposed of /decreed suits i,e, Suit No,414 of 2011 and Suit No,50 of 2012. It is worth to mention that upon passing of a 'decree' or 'disposal' of the case, otherwise, finally the Court, under law, became functus officio. Per definition given in the Law Lexicon Venkatraramaiya, the expression 'Functus Officio' means, having fulfilled the functions, discharged the duty[ies], discharged the office, or the purpose got accomplished. In a suit/proceeding as soon as a 'decree' is passed or the whole proceedings 'disposed of otherwise, then the proceedings in the finally disposed of case get terminated. In our opinion, in a 'disposed of/'decreed suit', the application like under Order I, Rule 10, C.P.C. cannot be entertained/dealt with.
If reference to any case law needs to be made then, we would refer to the case of Muhammad Umar and another v. Gul Muhammad through L.Rs, and 4 others [2010 CLC 397- DB] decided by the Hon'ble Division Bench of this Court. The relevant observation therefrom reads as follows: - "10. From the pleadings it appears that application under Order I, Rule 10, C.P.C. was filed after judgment and decree passed by the trial Court in favour of the petitioners. The respondent No,1 had also filed F.C. Suit No,16 of 1999 before the same Court in respect of same property but he did not move any application before the trial Court for joining him as defendant in F.C. Suit No,93 of 1998.
The above conduct of the respondent No,1 reflec that the intentionally and deliberately remained mum and had waited for final decision in the suit. The impugned order passed by learned Additional District Judge Sanghar reflects that same has been passed in mechanical manner without taking into consideration the very important aspect of the case that the judgment and decree had been passed and suit was finally disposed of and the Court has become functus officio, therefore, remanding the case for hearing of the application impugned order was uncalled for. Therefore, reason for remanding the case for hearing of the application under Order I, rule 10, C.P.C. was erroneous and such an application could not be entertained by the trial Court after it has given judgment and decree." [Emphasis Supplied]
31. Like-wise, the Application under Order XXI, Rule 26, C.P.C., was rightly dismissed as the same was not only 'mis-leading' but also 'misconceived' obviously for the reason that on one hand the Petitioner had filed an application as being 'Intervenor' and on the other hand, the application under Order XXI, Rule 26, C.P.C. supposed to be filed before transferee Court to enable the Judgment-debtor to apply to the Court which passes the decree or to any Court having Appellate jurisdiction for obtaining a stay order of the execution application before the transferee Court. This stand/line of action of the Petitioner besides being self-contradictory/conflicting is self-destructive.
All legal heirs of deceased Habib-urRehman, no doubt, were present before the trial Court in Suit No,50 of 2012 [Nawaz Khan and another v. Imtiaz Khan, Habibur-Rehman [since deceased] through his legal L.Rs,], but the Petitioner is now claiming/alleging that his name was wrongly mentioned in the array of Defendants as ARSHAD instead of KHURSHEED ALI. The Petitioner, himself did participate in the proceedings by moving an application for seeking permission and leading evidence. Ex-facie, the application was granted and the Petitioner was allowed to lead evidence.
The Petitioner, however, failed and/or avoided to lead any evidence.
32.Manifestly, in the Execution Application No,08 of 2016 [Imtiaz Khan son of Mussali Khan [Decree-holder] v. Nawaz Khan son of Mussali Khan and Mumtaz Khan son of Mussali Khan [Judgment-debtors], are the Judgment-debtors who under the consolidated 'Judgment' and 'Decree' dated 28.05.2016, are required to vacate and hand over the vacant physical possession of the ground and 1st floor of the 'subject property' i,e, Plot No,41, measuring 2040 sq. yds plus 2 storeys building standing thereon to Imtiaz Khan/Decree-Holder. In view of this position, as well, the said Application under Order XXI, Rule 26, C.P.C. for staying of the execution proceedings against two [2] Judgment-debtors namely Nawaz Khan and Mumtaz Khan, in our opinion, was not maintainable and, as such, was dismissed rightly.
33.Like-wise, the -Civil Revision Application No,48 of 2017 [Khurshid Ali son of Habib-ur-Rehman
[late] v. Imtiaz Ali, Nawaz Khan and Mumtaz Khan], in our opinion, was rightly dismissed vide otter dated 22.09.2017 passed by learned IIIrd Addl. District Judge, Karachi South. At this stage, we would like to refer to Section 115 of C.P.C., which reads as follows: "115. Revision.---(1) The High Court may call for the record Of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears---
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.] Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for the reason to be recorded, dispose of such application without calling for the record of the subordinate Court.] [Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months] [(2)the District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.] [Emphasis supplied].
[(3)if any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court]."
34. In a Civil Revision Application, the concurrent findings of law and facts are immune from interference until there appears gross illegality[ies] irregularity[iesj, mis-reading and/or non- reading of evidence which, however, is not the case in hand. The case of the Petitioner, from any angle was not, qualified to be entertained under section 115, C.P.C., as such, the same was validly dismissed. Reliance in this regard can be placed on the case of Kanwal Nain and 3 others v. Fateh Khan and others [PLD 1983 SC 53] wherein, it was observed as follows:-- "Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction that Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly from the conclusions of the subordinate Court upon questions of fact or law. No such matters arose in this case, and the order of the High Court upon the petition was without justification."
35. Besides, nothing material has been pointed out by the Petitioner, as to how, the impugned consolidated 'Judgment' and 'Decree' dated 28.05.2016. having been passed on merits and also there-against Civil Revision Application No,48 of 2017 has already been dismissed on 22.09.2017 is liable to be set aside. Merely, using the words 'fraud' and 'misrepresentation' itselves, are not sufficient to bring the case of the Petitioner within the scope of Section 12(2), C.P.C. In the case in hand, even otherwise, under the facts and circumstances of the case, the question of alleged 'fraud', 'misrepresentation' does not arise. Moreover, the remedy available under Section 12(2), C.P.C. is not like the remedy as available in the regular suit and Court, of course, may 'dispose of the application under section 12(2), C.P.C. without framing issues, recording evidence of parties or otherwise, following the procedure for trial of the suit. Further, lack of knowledge is not a, good enough reason for bypassing the other available legal remedies. Moreover, the scope of Section 12(2), C.P.C., could not be enlarged beyond the grounds enumerated in Section 12(2), C.P.C. For this reason reference of the Petitioner to the alleged Agreement dated 26.3.2009 at this belated stage is of no significance. Further, it is worth to note, the Petitioner, as claimed, is living on the 'subject property' since long with the two Judgment-debtors viz. Nawaz Khan and Mumtaz Khan but now he surprisingly claims lack of knowledge of the two [2] consolidated suits pending since, 2011/2012.
This stand of the Petitioner is not only belied by the portion/extract reproduced in 'Para 29' hereof, but also by the portion/extract recorded in Order dated 22.09.2017 passed by the learned IIIrd Addl.
District Judge, Karachi South. The portion/extract reads as follows:- "...Face of the record clearly mentions that the mother of applicant Khursheed Ali son of Habib-ur- Rehman was made a party in Suit No,414/2011, wherein he filed his Vakalatnama dated 14.07.2012, through the same lawyer who filed the present revision application before this Court. On the other hand, the applicant claims that he has been living on the suit property since long where Mumtaz and Nawaz were also living, who had been appearing in the said suit. It is not possible that Nawaz and Mumtaz had been appearing in the-said suit for four years and the applicant Khursheed Ali had no knowledge of the said suit during that period of four years."
36. Not only the above, it is also surprising to note, that the Petitioner is seeking setting aside of a consolidated 'Judgment' and 'Decree' dated 28.05.2016 whereby, Suit No,50 of 2012, filed by Nawaz Khan and Mumtaz Khan [Respondents Nos, 4 and 5 herein], against Imtiaz Khan and all LRs of Habib-urRehman including the Petitioner was dismissed through a well reasoned and detailed consolidated 'Judgment' and 'Decree' dated 28.05.2016. The conduct of the Petitioner throughout is not only mala fide but manifestly, aimed to delay/forestall the execution proceedings in a calculated manner, seemingly, at the behest of two [2] Judgment-debtors in Suit No,414 of 2011 against whom, 'inter alia' the said suit, was decreed for handing over vacant possession of the 'subject property' under their occupation. Per record, In the EXECUTION No,08 of 2016 arising out of Suit No,414 of 2011 [lmtiaz Ali Khan son of Mussali Khan v. Nawaz Khan and Mumtaz Khan], the 'WRIT OF POSSESSION is being issued/repeated before status quo order passed in the instant Petition on 03.10.2017 against the aforesaid two [2] Judgment-debtors and not against the present Petitioner/LRs' of late Habibur-Rehman.
37.Even the Civil Appeal No,122 of 2017, filed by the present Petitioner against the 3 'impugned Orders' herein passed on [i]. application under Order XXI, Rule 26, C.P.C. dated 15.07.2017, [ii]. application under Order I, Rule 10, C.P.C. read with Section 151, C.P.C. dated 15.07.2017 and [iii]. application under section 12[2], C.P.C., has already been dismissed vide Order dated 03.08.2017, passed by IIIrd Addl. District Judge, Karachi South.
38. For all the above reasons and discussions, we, are, therefore, clear in our mind and do not feel inclined to exercise our jurisdiction in the given circumstances of the case in hand, in favour of the petitioner thus the instant petition as `framed' and 'filed', which besides, devoid of any merits and not maintainable is dismissed at Katcha Peshi stage along with all the pending application[s], however, with no order as to costs.