SHAHID BILAL HASSAN, J. ---Succinctly, one Javed died issue less leaving two widows to inherit his legacy. Mst. Mehti agreed through agreement to sell dated 12.09.1971 to sell her land measuring 216 kanals in favour of Mst. Sakina Bibi. As she did not honour the terms and conditions of the agreement of sale a suit for specific performance was filed, wherein a decree was passed on 16.10.2014. An appeal was filed by respondent No, 3 but the same was rejected on 28.03.2015 being non-maintainable. To challenge the said judgment and decree an application under Section 12(2), C.P.C. was filed by respondent No, 3 on the ground that he was legal representative of Mst. Mehti deceased. There was a checkered history with respect to the status claimed by respondent No, 3.
He had earlier claimed himself to be a legal representative on the basis of an order of an Additional District Judge dated 15.09.1983 and got mutation No, 1192 entered on 01.04.1999, but as this Court issued injunction, therefore, the same stood rejected on 12.02.2000. Another mutation bearing No, 1624 was got entered by respondent No, 3, that time claiming to be heir of deceased Mst. Mehti, but failed to prove himself as an heir, hence it too was rejected on the basis of order dated 09.10.2004. Respondent No, 3 again got mutation No, 1637 entered on 08.10.2004 on the claim of a WILL dated 17.09.1980 allegedly executed by Mst. Mehti, but as the WILL was under challenge, the mutation bearing No, 1637, too, stood rejected on 18.08.2009. Allegedly, these shifting stands taken by respondent No, 3 to usurp the estate of Mst. Mehti were sufficient to hold his claims to be false and fabricated, upon which an FIR No, 133/2005, under Sections 419, 420, 467, 468, 471, PPC was registered against him for having fabricated the WILL and he remained in jail till he was granted bail by this Court. To frustrate the agreement of sale in favour of late Mst. Sakina, respondent No, 3 filed various applications but all these applications met with failure either on merits or on account of withdrawal which included the dismissal for non-prosecution on 30.10.2012 of writ petition No, 5617/2011 from this Court.
At the moment a suit titled Jan Muhammad v. Province of Punjab and others was pending adjudication before the Civil Judge, Okara, which was filed on 31.03.2011. An application under Section 12(2), C.P.C., the subject-matter of present petition, was filed by respondent No, 3 wherein a detailed reply was submitted by the petitioners, predecessor, wherein the learned Trial Court vide order dated 07.04.2005 framed the issues. This order was challenged before the learned District Judge by the petitioners through Civil Revision No, 15 of 2015 which was dismissed vide impugned order dated 23.04.2016 with the following observations:-- "As so many controversies with respect to the suit property are involved under the umbrella of question of law and fact which could only be resolved through evidence produced by both the parties for the just decision. hence revision petition is hereby dismissed. Copy of the instant order be sent to the learned Trial Court for information. Record be also sent back to the learned Trial Court. Instant revision petition be consigned to record after its completion".
2. Learned counsel for petitioners has argued that the grounds enumerated justifying record of the evidence, either did not exist on the record or are the result of wrong appreciation of facts and law by the learned Revisional Court.- Added to the above, the scope of proceedings under Section 12(2), C.P.C. has completely been deviated by the Revisional Court, there has been a circumscribed jurisdiction invokeable under Section 12(2), C.P.CA, on the grounds that the impugned decree had been procured through fraud and misrepresentation played upon the Court. Learned Revisional Court has gone much beyond the said circumscribed limit while giving a free hand to the respondent No, 3 to lead the evidence with respect to his status to justify his right to file an application under Section 12(2), C.P.C., which is beyond the scope of said provision of law. Although Rule 10 of Order I, C.P.C. can be invoked by the Courts of law at any time of the proceedings but if the conduct of a party proves -beyond any shadow of doubt that it is acting with malicious intentions not only to falsely grab the estate left by an issueless lady but also is the accused of fabrication of the WILL, this discretionary power has to be exercised with much more care and caution. In the instant case, quite a number of efforts were made by respondent No, 3 to be impleaded on the basis of changed status but he was denied that induction for many years.
Initially he was deleted on 14.12.2010 against which he filed a revision petition which was dismissed on 08.03.2011. He thereafter challenged that order through writ petition No, 5617/2011 which stood dismissed for non-prosecution on 30.10.2012 and thereafter respondent No, 3 took no step to have that order set aside. He had earlier filed an application to be impleaded on 21.03.2011 but then withdrew on 28.03.2011, this too estops him to be impleaded, yet another application under Order I Rule 10, C.P.C. was filed which stood dismissed on 06.05.2013 and even Civil Revision against that order was dismissed on 11.10.2014 and now writ petition No, 505/2014 is pending before this Court.
Learned Revisional Court has committed a jurisdictional error in failing to appreciate the evidence while rendering the impugned order. The litigation in the instant case has commenced in year 2000 and now another round of litigation is being illegality forced upon the petitioners under the grab of petition under Section 12(2), C.P.C. The intention of law while introducing Section 12(2), C.P.C. was in fact to curtail the agony of the parties but unfortunately it is being used as a weapon to prolong the respondent No, 3 disentitle him to file a petition under Section 12(2), C.P.C. There was no need to frame the issues, nor was there any requirement to lead the evidence. Petition under Section 12(2), C.P.C. was incompetent in the eyes of law when a suit for declaration was already pending adjudication before the Civil Court. This case safely be pleaded in the suit pending adjudication before the learned Civil Judge. The third ground which weighed with the learned Revisional Court was entirely beyond the scope of Section 12(2), C.P.C., when it was observed that the decree dated 16.10.2014 has been passed in a suit filed on 09.05.2000 to seek the enforcement of an agreement dated 12.09.1971, can by stretch of imagination be considered to be ground for the setting aside of the decree under Section 12(2), C.P.C. because the merits of those proceedings cannot be allowed to be challenged through a maliciously motivated petition under Section 12(2), C.P.C.Submits that the impugned orders dated 23.04.2016 and 07.04.2015 passed by the learned Courts below are illegal, unlawful and thus without lawfully authority and in case the same are not so declared and set at naught the petitioners are bound to suffer irreparable loss and injury. He has prayed that by allowing the Constitutional petition in hand, the impugned orders may be set aside and the learned Trial Court may be directed to decide the application under Section 12(2), C.P.C. after hearing arguments.
3. Contrarily, learned counsel for the respondent No, 3 has supported the impugned orders and has further argued that any person aggrieved of any order or judgment or decree, if his rights are affected adversely, can call into question such order, judgment and decree by filing application under Section 12(2) of the C.P.C. He has further argued that statutory right of appeal being available under law cannot be denied merely because law provided another remedy. Lastly, he has prayed for dismissal of the Constitutional petition in hand. Relies on H.M. Saya & Co., Karachi v.
Wazir Ali lndustries Ltd., Karachi and another(PLD 1969 Supreme Court 65), Ch. Jalal Din v. Mst.
Asghari Begum and others(1984 SCMR 586), Noor Muhammad and others v. Province of Punjab and others(1985 MLD 1236-Lahore), Mercantile Fire & General Insurance Co. of Pakistan Ltd. v.
Messrs Imam & Imam Ltd. (1989 CLC 2117), Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others(1999 SCMR 1516), Raja Wali v. Mansha Ahmed(PLD 1996 Lahore 354)and Ardeshir Cowasjee and others v. K.B.C.A. and others(PLD 2003 Karachi 314).
4. Heard.
5. After hearing arguments and going through the record it has come on surface that the respondent No, 3/applicant in application under Section 12(2) of the Code of Civil Procedure, 1908
(Code) claims himself legal their heir of Mst. Mehti as well as holder of a registered will in his favour, which is yet to be proved by him as a suit in this respect on his behalf is pending adjudication, meaning thereby he has yet to prove the valid execution of alleged WILL in his favour as well as being declared as legal heir of Mst. Mehti. In the instant case, quite a number of efforts were made by respondent No, 3 to the impleaded on the basis of changed status but he was denied that induction for many years. Initially he was deleted on dismissed on 08.03.2011. He thereafter challenged that order through writ petition No, 5617/2011 which stood dismissed for non- prosecution on 30.10.2012 and thereafter respondent N. 3 took no step to have that order set aside.
He had earlier filed an application to be impleaded on 21.03.2011 but then withdrew on 28.03.2011, this too .estops him to be impleaded, yet another application under Order I, Rule 10, C.P.C. was filed which stood dismissed on 06.05.2013 and even Civil Revision against that order was dismissed on 11.10.2014 and now writ petition No, 505/2014 is pending before this Court, file of which has been summoned and has been gone through, which goes to evince that the same has been disposed of on 04.04.2017 with the following observation:-- '2. It has been highlighted that the main suit in which the afore-noted application was filed has been decreed on 16.10.2014, against which petitioner preferred an appeal. which also stood dismissed on 28.03.2015, whereupon, Civil Revision No, 1402/2015 was filed. It is also highlighted that the initial judgment and -decree dated 16.10.2014 has been set aside by the learned Trial Court on an application filed by the petitioner under Section 12(2), CPC, against which a Civil Revision is pending before this Court.
3. In view of the fact that this petition emanates from an interim order passed by the learned Trial Court and since the main suit has been decided, therefore, there is no live issue in this petition.
Disposed of'
The appeal filed by the respondent No, 3 against the judgment and decree dated 16.10.2014 has also been dismissed on 28.03.2015 by the learned Appellate Court, against which his Civil Revision bearing No, 1402 of 2015 titled Jan Muhammad v. Mst. Sakina Bibi, etc. is also pending before this Court, which has been got adjourned sine die vide order dated 04.04.2017, which runs:--
2. Learned counsel for the petitioner at the outset submits that the initial judgment and decree passed by the learned Trial Court was set aside on an application under Section 12(2), CPC filed by the petitioner, whereupon a Civil Revision has been filed before this Court, in which operation of the said judgment has been suspended. He submits that till the decision of the latter Civil Revision, this revision petition may be adjourned sine die.
3. In view of the above, this revision petition is adjourned sine die. In case there is any unresolved issue between the parties, either of the parties can get this appeal resurrected through an appropriate application.'
It is pertinent to note here that during pendency of C.R. No, 1402 of 2015, the respondent No, 3 filed an application under Section 12(2) of the Code without disclosing the factum of pendency of the above-said Civil Revision against judgments and decrees dated 16.10.2014 and 28.03.2015 passed by the learned Trial Court and learned Appellate Court respectively, before this Court and got suspended the operation of the decree dated 16.10.2014 vide impugned order dated 23.04.2016, against which otherwise the said Civil Revision No, 1402/2015 was already pending adjudication before this Court and was not finally decided, rather, after filing of the instant Constitutional petition and during its pendency, the same was got adjourned sine die. All these facts proceed to 'show how the respondent No, 3 by twisting facts used powers of the Court in his favour. He must have approached the Court with clean hands but as stated above that during pendency of the Civil Revision No, 1402/2015 (which is yet to be adjudicated upon and decided finally as the same was got adjourned sine die) he filed the application under Section 12(2) of the Code. The intention of law while introducing Section 12(2), C.P.C. was in fact to curtail the agony of the parties but unfortunately it is being used as a weapon to prolong the miseries of the parties. Petition under Section 12(2) of the Code was incompetent in the eye of law when a suit for declaration was already pending adjudication before the Civil Court and even the plea taken up by the respondent No, 3 in his application under Section 12(2) of the Code can safely be pleaded in the already filed Civil Revision No, 1402/2015.
6. The respondent No, 3 despite having knowledge germane to pendency of the above-mentioned civil revision set the law into motion by misguiding as well as concealing the facts and has wasted the precious time of Courts, not only of the learned Trial Court and Appellate Court but also of this Court, thus, the argument advanced by the learned counsel for the respondent No, 3 that statutory right of appeal being available under law cannot be denied merely because law provided another remedy and the respondent No, 3 could file application under Section 12(2) of the Code, has no force, especially when the respondent, No, 3 had availed right of appeal against the judgment and decree dated 16.10.2014, which appeal was dismissed vide judgment and decree dated 28.03.2015 and against the said judgments and decrees Civil Revision No, 1402 of 2015 was pending and alive, not finally adjudicated and decided.
7. Pursuant to the discussion, the application under Section 12(2) of the Code was not competent and maintainable and has wrongly been filed by the respondent No, 3 and has obtained the impugned orders through concealment of facts.
8. The case-law relied upon by the learned counsel for the respondent No, 3 has no relevance to the peculiar facts and circumstances of the case in hand; thus, with utmost respect to the same, it does not render any assistance or help to his case.
9. For the foregoing reasons, the Constitutional petition is allowed, impugned orders dated 07.04.2015 and 23.04.2016 passed by the learned Trial Court and learned revisional Court, respectively are set aside; the application under Section 12(2) of the Code of Civil Procedure, 1908 filed by the respondent No 3 stands dismissed, with costs throughout.