AZIZ-UR-REHMAN, J.---Through the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 19.10.2017 through General Secretary viz. Muhammad Yaseen son of Muhammad. Khawaja as being competent and authorized officer of the Petitioner's Society viz. Lucknow Cooperative Housing Society Limited besides, seeking a declaration to the effect that all legal proceedings i.e. from filing of Suit No.1115/2009 [Syed Gulzar Hussain v.
Lucknow Cooperative Housing Society Ltd.] as well as of the Execution No.01/2011 [Syed Gulzar Hussain v. Lucknow Cooperative Housing Society Ltd.], arising therefrom, be quashed as according to Petitioner's stand the same are illegal, unlawful and void ab initio. For ready reference the prayers sought by the petitioner read as follows:-- a. To declare that all proceedings from filing of Suit No.1115 of 2009 (Sayed Gulzar Hussain v.
Lucknow Cooperative Housing Society) and Execution Application No.01 of 2011 in the Court of IV Senior Civil Judge, Karachi (South); are illegal, unlawful. void ab initio. b. To quash all proceedings in suit No. 1115 of 2009 (Sayed Gulzar Hussain v. Lucknow Cooperative Housing Society) and Execution Application No.01 of 2011 in the Court of IV Senior Civil Judge, Karachi (South). c. Any other or further orders which this Hon'ble Court may be pleased to deem fit and proper under the circumstances of the case. d. Cost of the petition.
2. Briefly stated, the Petitioner is a Co-operative Housing Society as per definition of Co-operative Societies Act, 1925 and the Respondent No.2, is a member of the Petitioner's Society. The Respondent No.2, as averred in Memo of Petition [In short MoP] had approached the Management of the Society for allotment of a residential plot in the year, 2009, but due to non-availability of the plot at the relevant time it could not be allotted to the Respondent No.2. The Management of the Petitioner' Society, however, had made promise to allot a plot to the Respondent No.2 on its' availability.
3. The Respondent No.2, despite such promise, made by the Petitioner's Society, however, filed a Civil Suit No.1115/2009 [Saved Gulzar Hussain v. Lucknow Cooperative Housing Society] against the Petitioner's Society in the Court of IVth Senior Civil Judge, Karachi South, for declaration and mandatory injunction with the prayers as follows:--
1. It is therefore prayed that this Honourable Court may be pleased to declare that plaintiff is member of Lucknow Cooperative Housing Society Limited.
2. It is also declare that plaintiff has paid the cost of land of residential plot measuring 1120 sq. yards and also for demarcation cost hence he is entitle to allot a residential plot in above society.
3. It is also declared that plaintiff also has paid cost of the commercial plot to the defendant he is also entitled of commercial plot allotment in above society.
4. That this Honourable Court be please to grant mandatory injunction against the defendants, their agents, administrators and assigns to direct defendant above named not to allow any plot to any third party till not allotted the both plots to the plaintiff and may also be directed to allot residential plots to the plaintiff and also lease out the said plot on the name of plaintiff as he has paid the full cost of both plots.
5. That suit may be decreed as prayed.
6. That any other relief which this Honourable Court may deem fit and proper under the circumstances of the case.
4. Upon filing of the aforesaid suit, summonses were finally served on the defendants [Petitioner herein] through publication in Daily Nawa-e-Waqt dated 16.12.2009. The Petitioner Society [Defendant in suit], however, failed and/or avoided to come forward to contest and/or rebut the claim of the Respondent No.2. Consequently, on 11.02.2010, the Court besides passing an ex parte order, the Petitioner's Society was also debarred from filing of its written-statement.
5. The plaintiff [Respondent No.2 herein], thereafter, filed his 'affidavit-in-ex parte proof, which was produced in his 'examination-in-chief' as Exh.P/1'. The other documents produced by the plaintiff in his 'examination-in-chief were exhibited as 'Exh.P/2' to Exh. 'P/11'. Thereafter, on 12.10.2012 the Respondent No.2's Suit No.1115/2009 was decreed as prayed in view of fact that the averments/assertions made in the plaint as well as documents produced by the Respondent No.2/Plaintiff had gone un-rebutted/un-challenged. Copies of judgment dated 12.10.2012 and decree dated 21.10.2012 passed by learned IVth Senior Civil Judge, Karachi [South] are available on record.
6. On obtaining a judgment and decree in his favour, Respondent No.2/Decree-holder approached the Petitioner's Society for satisfying the decree passed on 21.10.2012, but the Petitioner's Society instead of satisfying the decree as requested filed an application under section 12(2) C.P.C. read with section 151, C.P.C. in Suit No.1115/2009 whereby, the Judgment and Decree passed in favour of Respondent No.2, was challenged on the basis of fraud and mis-representation. The said application under section 12(2), C.P.C., however, was dismissed for 'non-prosecution' on 04.10.2011.
The Petitioner's Society, thereafter, opted to file another application under Order IX, Rule 9, C.P.C. but the same was also dismissed on 24.02.2014 after hearing the arguments of both sides. The Respondent No.2's Execution Application No.01 of 2011 then pending before learned IVth Sr. Civil, Judge Karachi [South] when came-up before the executing Court on 24.02.2014 then the following order was passed :- "24.02,2014 This order is propose to dispose of application dated 31.11.2013 filed under Order IX, Rule 9, C.P.C. read with section 151, C.P.C. for restoration of application under section 12(2), C.P. C. by the learned counsel for the JD along with supporting affidavit of one Muhammad Yasin son of Muhammad Khawaja with the prayer to restore the application under section 12(2), C.P.C. of the JD and to decide the same on merits utter hearing both the parties.
The decree holder side was put on notice to the instant application and the DH filed his objection/counter-affidavit denying the contentions/averments of the JD side.
1 have heard the learned counsel for the JD. He contended that the plaintiff had obtained the ex parte judgment dated 12.10.2010 and decree dated 21.10.2010 by fraud and misrepresentation, against which the judgment debtor had application under section 12(2), C.P.C., which was dismissed by this court for non-prosecution on 04.10.2011. The learned counsel next argued that on 04.10.2011 he could not appear before this court, as he was busy before the Honourable High Court of Sindh Karachi and he came to know on 25.10.2013 that the said application was dismissed by the court for non-prosecution, however, prior to this JD deemed that his application under section 12(2), C.P.C. was pending. Therefore, the learned counsel for the JD prayed for recalling the order dated 04.10.2011 and restoring the application under section 12(2), C.P.C. of the JD. On the other hand the learned counsel for the DH vehemently opposed the arguments of learned counsel for the JD and contended that the application under section 12(2), C.P.C. filed by the defendant/JD was dismissed by this court on 04.10.2011 for non-prosecution and even after the dismissal of said application the defendant has been appearing before this court in the Suit No.1115/2009 and also filed objection on 16.05.2012 in the court, however, he did not bother to know the fate of application under section 12(2), C. P. C., as such the contention of learned counsel for the defendant/JD that he came to know 25.10.2013 that the application under section 12(2), C.P.C. of JD was dismissed for non-prosecution is without force and cannot be considered, as such, the instant application is time barred and not maintainable according to law. He prayed for dismissal of the instant application.
I have carefully considered the arguments advanced on both the sides and gone through the material placed on record. Admittedly the application under section 12(2), C.P.C. filed by the learned counsel for the defendant/JD and supporting affidavit of Muhammad Yamin son of Muhammad Khawaja was dismissed for non-prosecution on 04.10.2011 and perusal of record also shows that the JD has been appearing before the court after 04.10.2011 and even otherwise it was the duty of the JD to pursue his application filed under section 12(2), C.P.C. yet he remained indolent for a considerable period of about two years, as such the contentions of learned counsel for the defendant/JD that he came to know on 25.10.2013 about the dismissal of the application under section 12(2), C. P.C. appears to be an afterthought in order to bring the instant application within the period of limitation, as such the said arguments of learned counsel for the defendant/JD is without force and the application under Order IX, Rule 9, C.P.C. is miserably time barred. Even otherwise no reasonable ground has been shown for non prosecution of defendant/JD on 04.10.2011, when his application under section 12(2), C:P.C. was dismissed. Hence for the foregoing reasons I am of the humble view that the instant application is without merits, consequently the same is hereby dismissed with no order as to cost. Order accordingly."
[Emphasis supplied]
7. The Respondent No.2/Decree-holder thereafter, it appears, had also filed an application under Order XXXVIII, Rule 5. C.P.C. with a prayer for attachment the plot i.e. Plot No.ST-27, Sector 31-E, Lucknow Cooperative Housing Society, Karachi belonging to the Petitioner/ Judgment-debtor. The learned executing Court [Respondent No.1 herein], after hearing, was pleased to allow the said application for attachment of the said plot vide order dated 03.07.2015 and thus office/plot of the Society was ordered to be attached. In the alternate, the Society was directed to deposit Rs.56,00,000/- as cost of both plots situated in Lucknow Society within one month from the date of order dated 03.07.2015. The relevant part of the order dated 03.07.2015 is as under :- "03.07.2015 It is also matter of record that defendant/JD also preferred application dated 31.11.2013 under Order IX, Rule 9 read with section 151, C.P.C., for restoration of application under. section 12(2), C.P.
C. which was also dismissed by learned predecessor judge on 24.02.2014.
Therefore, in order to meet with the ends of justice, let the plot of office Lucknow Co-operative Housing Society ST-27 Sector 31/E Korangi Karachi be attached and to deposit in alternate amount of Rs.56,00,000/- cost of both plots situated in Lucknow society claim by decree holder within one month from the date of this order." [Emphasis supplied].
8. The executing Court in efforts to get the decree satisfied passed in favour of Respondent No.2, issued 'sale proclamation' of the plot upon which the office of the Petitioner/Judgment-debtor Society is situated. The sale of the said immovable property, so far, however, has not taken place, seemingly, due to the hurdles created by Judgmentdebtor/Petitioner herein.
9. Nevertheless, in the above scenario, Petitioner's Society again feeling aggrieved by orders passed in Execution proceedings constrained to file a Constitutional Petition No.D-1705 of 2016 [Lucknow Cooperative Housing Society v. IV Sr. Civil Judge, Karachi [South] and Respondent No.2 herein], before this Court. On 04.05.2016 while, 'disposing of the said Petition by Division Bench of this Court, the following 'consent order' was passed: "04.05.2016 Learned counsel for the petitioner states that he has been specifically instructed by the petitioner- society that the petitioner-society is willing to comply with the order dated 21.12.2012 (Annexure 'J' to the MoP) passed by the learned executing Court on or before 15.06.2016, the relevant portion whereof reads as under: "...Resultantly the instant execution application is allowed and the defendant is directed to allot the residential plot measuring 112 sq. yards also commercial plots to the plaintiff so also lease out the said plot in the name of plaintiff in accordance with law within 30 days of passing of this order.
Order accordingly."
"Respondent No.2, Syed Gulzar Hussain who is present in person states that he has no objection if time till 15.6.2016 is granted to the Petitioner to comply with the order dated 21.11.2012, passed by the learned Executing Court. By consent and without touching merits of the case, especially the question of the maintainability this petition is disposed of along with the pending applications.
The operation of the impugned order passed by the learned Executing Court shall remain suspended till 15.6.2016. In case the said order is not complied with by the Petitioner within the stipulated period; the restraining order passed in the instant petition shall stand vacated."
[Emphasis supplied].
10. Despite passing of the aforesaid 'consent order', the Petitioner's Society, however, in its' own wisdom again preferred an application under Order XXXIX, Rules 1 & 2, C.P.C. in Constitutional Petition No.1705 of 2016 for restraining the Respondent No.1, not to proceed further with the Execution No.01 of 2011 arising out of Suit No.1115 of 2009 but the same as averred in Para 18 of the Memo. of Petition, was withdrawn by the petitioner. Under the aforesaid circumstances, now the Petitioner's Society/Judgment-debtor has approached this Court through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 inter alia for seeking quashment of judicial proceedings of Suit No.1115 of 2009 and Execution No.01 of 2011.
11. On 20.10.2017, when the above petition came-up before us, then while, granting the urgent application, the Petitioner's counsel was asked to satisfy this Court about the maintainability of instant petition. Mr. Afaq Yusuf, learned counsel for the Petitioner while, advancing his arguments vehemently contended that, the whole proceedings right from filing of Suit No.1115 of 2009 till issuance of the 'Sale Proclamation' of the attached plot in the Execution No.01 of 2011 are illegal, un- lawful and void ab initio, as such, the same are liable to be quashed/declared as null and void.
12. Heard arguments and perused the record.
13. It is admitted position that the Judgment and Decree dated 12.10.2010 passed in Suit No.1115/2009 [Sayed Gulzar Hussain v. Lucknow Cooperative Housing Society], was firstly challenged on the basis of fraud and mis-representation through the application under section 12(2), C.P.C. r/w section 151, C.P.C. but the same was dismissed on 04.10.2011. Upon dismissal of the said application when again the aforesaid Execution Application No.01 of 2011 came-up before the executing Court then, the same was allowed on 21.12.2012 through the following order:-- "21.12.2012 Heard the learned counsel for the decree holder and perused the relevant record.
This is an execution application filed by the decree holder for the execution of decree dated 21.10.2010 in Civil Suit No.1115/2009 passed by this Court vide judgment dated 12.10.2010, whereby the suit for declaration and Mandatory Injunction filed by the plaintiff/decree holder against the defendant/JD was decreed as prayed.
Notice of instant execution application was sent to defendant/JD through bailiff courier service and by way of pasting, but the defendant/JD did not appear. Ultimately service was made against him through publication of notice in Daily News Paper Nawa-e-Waqt dated 13.10.2011 and service was held good against the defendant/JD vide order dated 25.10.2011 by the defendant/JD, but did not appear and chose to remain absent. Many chances were given to the defendant/JD to file objections, but defendant/JD has neither appeared nor filed any objections till date. Ultimately the defendant/ JD was debarred from filing objections vide order dated 02.12.2011.
Since the defendant/JD has failed to appear and he has not complied with the order/directions of this Court as given in the judgment dated 12.10.2010 and decreed dated 21.10.2010, therefore this court is left with no other option but to allow the execution application in hand as prayed.
Resultantly the instant execution application is allowed and the defendant is directed to allot the residential plot measuring 112 sq. yards also commercial plots to the plaintiff so also lease out the said plot in the name of plaintiff in accordance with law within 30 days of passing of this order.
Order accordingly." [Emphasis is supplied]
14. It is needless to say that the Petitioner's Society/Judgment debtor's application filed on 31.11.2013 under Order IX, Rule 9, C.P.C. read with section 151, C.P.C. on 31.11.2013 for setting aside/recalling of order dated 04.10.2011 whereby, the Petitioner's application under section 12(2), C.P.C. read with section 151, C.P.C. was later on also dismissed on 24.02.2014. The said application under Order IX, Rule 9, C.P.C. read with section 151, C.P.C. it is worth to mention was filed on 31.11.2013 i.e. after more than two years.
15. The Petitioner much after the grant of the aforesaid Execution Application on 21.12.2012, filed another C.P. No.D-1705 of 2016 [Lucknow Cooperative Housing Society v. IV Sr. Civil Judge, [South], Karachi before this Court with following prayers:-- a. To declare that all proceedings from filing of Suit No.1115 of 2009 (Sayed Gulzar Hussain v.
Lucknow Cooperative Housing Society) and Execution Application No.01 of 2011 in the Court of IV- Senior Civil Judge, Karachi (South); are illegal, unlawful, void ab initio. b. To quash all proceedings in Suit No. 1115 of 2009 (Sayed Gulzar Hussain v. Lucknow Cooperative Housing Society) and Execution Application No.01 of 2011 in the Court of IV Senior Civil Judge, Karachi (South). c. Any other or further orders which this Hon'ble Court may be pleased to deem fit and proper under the circumstances of the case. d. Cost of the petition.
16. The aforesaid CP No.D-1705 of 2016 with above prayers was `disposed of with consent of Petitioner/Judgment-debtor and Respondent No.2/ Decree-holder on 04.05.2016. Despite 'disposal' of C.P. No.D1705 of 2016 by consent, the Petitioner/Judgment-debtor, nonetheless, in a calculated manner has again approached this Court with same prayers, which conduct of the Petitioner is not only afterthought but also mala fide.
17. In our view Constitutional Jurisdiction can only be exercised and used fairly and justifiably in aid of justice and not otherwise, for the purpose of promoting/advancing injustice. Moreover, it is worth to mention that the Petitioner's Society/Judgment-debtor had earlier challenged the Judgment and Decree on the basis of fraud and misrepresentation but upon loosing the battle now the petitioner is assailing the same on the ground that the proceedings taken place in the suit and execution proceedings are illegal and void ab initio which cannot be permitted as under law one cannot approbate and reprobate.
18. For and in view of the above circumstances, this instant constitutional petition besides, mis- conceived and mis-leading is devoid of any merits, as such, the same is dismissed in limine along with all pending applications, however, with no order as to cost.