ATIR MAHMOOD, J.----Through this single judgment, I intend to dispose of Writ Petition No.7034 of 2013 an C.M.
No.1/2015 in Writ Petition No.3257 of 2009 under section 12(2), C.P.C. as common question of law and fact are involved therein.
2. A consolidation scheme of village Gadoki, Tehsil and District Kasur was introduced which was ultimately confirmed by the Consolidation Officer vide order dated 31-3-1999 under section 10(3) of the Consolidation of Holding Ordinance, 1960. The petitioners filed ROR No.758/2000 under section 13 of the Ordinance ibid which was dismissed by Member Board of Revenue (hereinafter called "the MBR") as withdrawn on 26-5-2001. The petitioners then filed revision petition before the EDO(R) Kasur who after hearing the parties transmitted the matter to Deputy District Officer (Consolidation) vide order dated 29.08.2002. The said order was assailed by the petitioners before the MBR who accepted the petition of the petitioners and directed the EDO(R) to decide the matter himself vide order dated 16.11.2002. Having summoned reports from the consolidation staff and heard the parties, the EDO(R) dismissed the revision petition of the petitioners vide order dated 06.06.2006. The petitioners preferred revision petition before the MBR who dismissed the same vide order dated 11.02.2009. On 18.02.2009, the petitioners sought review of order dated 11.02.2009 by way of filing Review Petition No.30/2009. During the pendency of the review petition, respondents Muhammad Hanif and Abdul Rashid sons of Sardar Khan filed Writ Petition No.3257/2009 which was dismissed vide order dated 05.03.2009. According to the petitioners, the said writ petition was deliberately and with mala fide intention got dismissed by said respondents to frustrate the proceedings of the review application pending before the MBR at that time. A copy of order dated 05.03.2009 was produced before the MBR. The petitioners filed Writ Petition No.8514-R/2009 with the prayer that MBR be directed to decide the review petition of the petitioners on merits without being influenced order dated 05.03.2009 which was dismissed by this Court vide order dated 06.05.2009. The Review Petition No.30/2009 filed by the petitioners was dismissed by the Member (Consolid ation), Board of Revenue vide order dated 20.08.2009. The petitioners filed second review petition No.413/2009 which was dismissed on the grounds that the matter had already been decided by this Court and was pending before the Hon'ble Supreme Court of Pakistan vide order dated 14.06.2010. In the meanwhile, the petitioners filed CPLA No.788- L/2009 against order dated 05.03.2009 passed in Writ Petition No.3257/2009. The apex court dismissed the CPLA vide order dated 22.07.201 1. The petitioners still feeling aggrieved filed Review Petition No.83-L/201 1 for review of order dated 22.07.201 1 which was disposed of as not pressed vide order dated 31.12.2012. Hence Writ Petition No.7034/2013 was filed. Apart from petitioners of Writ Petition No.7034/2013 (hereinafter referred to as "the writ petition"), C.M. No.1/2015 in Writ Petition No.3257/2009 under Section 12(2), C.P.C. (hereinafter referred to as "the application") has been filed by Muhammad Israeel and Daulat Khan, both sons of Ameer Khan, and one Lal Muhammad son of Sufaid Khan (hereinafter referred to as "the applicants").
3. Arguments heard. Record perused.
4. Two matters, i.e. the writ petition and the application, have been put before me for adjudication. I take up both the matters one by one.
5. Regarding the writ petition, the first and foremost question is as to whether the writ petition is entertainable when the matter has already gone to the apex, court by way of filing the CPLA and then challenging the order in CPLA by filing the review application and both already stands dismissed. When confronted with the said question, learned counsel for the petitioners avers that the Hon'ble Supreme Court while disposing of the review application vide order dated 31.12.2012 allowed the petitioners to challenge order dated 20.08.2009 passed by the MBR before this Court. Order dated 31.12.2012 passed by the august Supreme Court reads as under: "Learned counsel for the petitioners on a second thought and having been confronted by the court does not want to press this review petition any further with a view to challenge the order dated 20.08.2009 passed by the Member , Board of Revenue (Consolidation) vide which his Review Petition No.30/2009 was dismissed. Be that as it may, this petition is disposed of as not pressed."
Bare perusal of above order of the Hon'bl e Supreme Court reveals that having confronted with some queries by the court, learned counsel for the petitioners on a second thought made a statement before the court that he did not want to press the review petition in order to challenge order dated 20.08.2009 passed by MBR whereby their Review Petition No.30/2009 was dismissed. On the said statement of learned counsel for the petitioners, the apex court dismissed the review petition of the petitioners as not pressed. Meaning thereby , the apex court dismissed the review petition after recording version of the petitioners but there is no permission of the apex court in the order to assail order dated 20.08.2009 before this Court. When confronted with, learned counsel for the petitioners asserts that the phrase "Be that as it may" used by the apex court reflects that the apex court admitted version of the petitioners and allowed them to assail order dated 20.08.2009 before this Court. I have looked for the definition of the said phrase in various dictionaries. Some of them are reproduced below: Cambridge Dictionary "Be that as it may" --- used to mean that you accept that a piece of information is true but it does not change your opinion of the subject you are discussing.
Collins Dictionary "Be that as it may"
PHRASE You say 'Be that as it may' when you want to move onto another subject or go further with the discussion, without deciding whether what has just been said is right or wrong.
Merriam-W ebster Dictionary "Be that as it may" ---used to introduce a statement that is somehow dif ferent from what has just been said A phrase that acknowledges a previous statement as true but ultimately unable to override some fact or sway one's thoughts on the matter .
Longman Dictionary "Be that as it may" ----used to say that even though you accept that something is true, it does not change a situation.
Macmillan Dictionary "Be that as it may" -- used for saying that even if something is true, it does not af fect your opinion.
Free Dictionary "Be that as it may"
Definition: Nevertheless, what you say may be true, but...
This phrase is used either to interject or to provide a statement of certainty and clarity . When someone begins a sentence with "be that as it may," he or she means to say that even if something is true, it does not change his or her stance.
This statement acknowledges the validity of the other person's point, but it maintains that the point has not swayed anyone's opinion.
English Dictionary "Be that as it may"
Despite that; Nevertheless (Emphasis provided)
The above definitions and meaning given in the various dictionaries for the phrase "Be that as it may" leads me to the conclusion that when someone begins his sentence with this phrase, it does not mean that he accepts whatever has been said before as correct, true and authentic but that even if the same is true and correct or although what has been said may be true, yet it can neither change the situation nor affect the opinion of the writer , which 'situation' and 'opinion' in this case appears to be the 'dismissal' of the review petition from the record. By no stretch of imagination, the phrase "Be that as it may" means "permission" or "allowance". The contention of learned counsel for the petitioners that the phrase "Be that as it may" means "permission" or "allowance" does not hold water , therefore, it is repelled. Furthermore, the matter of consolidation scheme was decided by the apex court in the CPLA filed by the petitioners on merit whereafter there remains no occasion for this Court to dilate upon. In addition, remedy of review petition again st order dated 20.08.2009 had already been availed by the petitioners before the MBR by filing second Review Petition No.413/2009 on 22.11.2009 and the same was dismissed by the MBR vide order dated 14.06.2010 much prior to decision of the Hon'ble Supreme Court of Pakistan in CPLA on 22.07.201 1 and in Review Petition on 31.12.2012, leaving no room to challenge the same any further . Reliance is placed upon the law laid down in case s Abdul Majid v. Qazi Abbas Hussain Shah (1995 SCMR 429) and Fazeelat Agha v. Chief Settlement Commissioner (2019 SCMR 417). In the circumstances, this Writ Petition No.7034/2013 is not maintainable and is liable to be dismissed.
6. Now remains C.M. No.1/2015 in Writ Petition No.3257/2009 filed by Muhammad Israeel and Daulat Khan both sons of Ameer Khan, and one Lal Muhammad son of Sufaid Khan. Perusal of record reveals that Ameer Khan, father of Muhammad Israeel and Daulat Khan, was present before the Hon'ble Supreme Court of Pakistan as his name is duly reflected in the array of the petitioners at Serial No.65 in CPLA No. 788-L/2009.
Since father of applicants Muhammad Israeel and Dault Khan was party in the proceedings of the CPLA before the apex court, they can't take plea that some fraud was committed with them or that the proceedings took place without notice to them. Therefore, the application to their extent is not maintainable. At this stage, learned counsel for the applicants submits that Ameer Khan had died prior to filing the CPLA and his name was incorrectly written in the array of the petitioners. However, on Court's query, he could not refer any document from the record suggesting that Ameer Khan was not alive at the time when the CPLA was instituted.
Furthermore, the documentary evidence, particularly the judicial record, prevails over the verbal assertions.
When the record of the apex court categorically reflects the existence of Ameer Khan at the time of filing the CPLA, there is no reason to believe otherwise. The contention of learned counsel for the applicants is accordingly repelled.
7. Another aspect of the matter is that in the application, order dated 05.03.200 9 passed by this Court in Writ Petition No.3257/2009 has been assailed. The same order was challenged by father of applicants Muhammad Israeel and Daulat Khan, namely Ameer . Khan by filing CPLA before the Hon'ble Supreme Court of Pakistan. Here arises a question as to whether applicants Muhammad Israeel and Daulat Khan .can file application under Section 12(2), CPC to challenge order of this Court dated 05.03.2009 after the CPLA filed by their father Ameer Khan against the same order stood dismissed. The answer is plainly 'No' for the reason that sometimes there are two or more remedies available to a party for redress of its grievance and it is always upto the party to choose recourse for redress of its grievance out of multiple remedies available to it. After dismissa l of Writ Petition No.3257/2009, the predecessor of the said applicants Ameer Khan chose himself to challenge order dated 05.03.2009 before the apex court and not before this Court. Thereafter , neither he nor his descendants can be allowed to re-agitate the same matter in this application as it goes against the doctrine of election settled by the Hon'ble Supreme Court of Pakistan in various cases including case Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 SC 828 ).
8. The third applicant in the application is Lal Muhammad son of Sufaid Khan. There is order dated 06.06.2006 passed by the EDO(R) on record. Through this order , revision petition filed by the petitioners was dismissed. In this order , the name of applicant Lal Muhammad son of Sufaid Khan exists at Sr. No.17 8 of the array of the petitioners.
This shows that Lal Muhammad along with others challenged the consolidation scheme. He, however , did not assail order dated 06.06.2006 before any forum nor appears to have participated in proceedings taken place in the matter before the higher forums. Meaning thereby , he was aware of the proceedings continuing in the matter and could participate and argue the case at the appropriate time presenting his stance and grounds but he remained silent and slept over his rights whatsoever . It is settled law that law favours the vigilant and not the indolent. When he did not opt to challenge order of EDO(R) dated 06.06.2006 before higher forum, i.e. MBR or any other forum at relevant time and kept mum for a long time of about nine years, he cannot be allowed to do so now by filing this application under Section 12(2), C.P.C. stating that fraud has been committed upon him. This act of the petitioner is not only highly contumacious but also amounts to misusing the process of the court. Furthermore, this application is badly hit by laches. Needless to observe that if this practice is allowed, the litigation will never come to an end.
9. I am conscious of the fact that ordinarily , the application under Section 12(2), C.P.C. is required to be treated like that of a suit, issues, to be framed and evidence to be recorded but in cases wherein, from the very outset, it is established that the application filed under Section 12(2), C.P.C. is legally not maintainable, the same can be dismissed in a summary manner withou t framing of issues and recording of evidence. In this case, there are several illegalities as well as contumacy evident on the part of the applicants as noted hereinabove, therefore, I am dismissing the application under Section 12(2), C.P.C. without resorting to framing of issues and recording of evidence. Reliance is placed on the dictums laid down in cases Lahore Development Authority v. Firdo us Steel Mills (Pvt.) Ltd. (2010 SCMR 1097 ), Muhammad Akram Khan v. Abrar Ahmed and 4 others (2012 CLC 162 Sindh), Dr. Masuma Hasan v. Muhammad Hafeez and others (2018 CLC 1471 Sindh) and Nusrat Abbas v.
Nighat Parveen and others (2018 CLC 1 15 Lahore).
10. For what has been discussed above, both the writ petition as well as the application in hand are without any merit which are D accordingly dismissed.