By filing this petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) the petitioners have assailed legality and propriety of orders dated 14.11.2016 and 12.11.2019 passed by learned Courts below , whereby petitioners' application filed in terms of Section 12(2), C.P.C moved on 1.10.2000 against the ex-parte judgment and ,decree dated 26.4.1976 passed by learned Civil Judge, Kot Addu, stood dismissed, mainly on the grounds of being against law, facts outcome of mis-reading and non-reading of evidence and as such not sustainable.
2. It has been contended by learned counsel for the petitioners that the petitioners were not served with the process and ex-parte decree in pre-emption suit was passed on 26.4.1976 by learned Civil Judge, Kot Addu, that too without recording evidence (just on the basis of report of local commission regarding market price of suit property). However , learned counsel for the petitioners concedes that earlier application in terms of Order IX Rule 13, C.P.C seeking setting aside said ex-parte judgment and decree filed by predecessor-in-interest of proforma respondents/co-defendants No. 13 to 19, thereinafter to be referred as proforma respondents) of the petitioners/vendees was dismissed by learned Civil Judge Kot Addu vide order dated 6.11.1989 and even (alleged) joint appeal (filed by predecessor-in-interest of the petitioners and other co-defendant/vendee) against that order had been dismissed and thereafter the petitioners moved the application in terms of Section 12(2), C.P.C on 1.10.2000.
3. Learned counsel has been heard at length and documents appended with this petition gone through in the light of submissions made by him.
4. Admittedly after passing ex-parte judgment and decree in favour of Allah Dewaya, predecessor-in-interest of the contesting Respondents Nos. 3 to 12 (hereinafter to be referred as contesting respondents), Fazal Hussain, one of the judgment debtors (now represented by proforma respondents) moved a petition in terms of Order IX Rule 13, C.P.C which was contested by the decree holder/predecessor-in-interest of contesting respondents which, after framing issues and recording, evidence of the parties, was dismissed by learned Civil Judge Kot Addu vide order dated 6.11.1989 believing evidence of the contesting respondents qua due service of Kora Khan, (predecessor-in- interest of present petitioners) (who even after passing of an ex-parte decree has not come forward to challenge the same independently or with Fazal Hussain, other judgment debtor) and also due service of said Fazal Hussain.
Record further reveals that during pendency of said application for setting aside ex-parte decree, moved by Fazal Hussain, some of the parties to the lis approached learned trial Court for impleading legal heirs of Kora Khan in the array of respondents, which was contested by the respondent/decree holder and was, however , dismissed.
5. Ultimately the main petition for setting aside ex-parte decree was dismissed by learned trial Court vide orders dated 6.11.1989. Thereafter said Fazal Hussain along with the petitioners/legal heirs of Kora Khan jointly filed an appeal against that order but could not succeed and their appeal was dismissed by learned Addy . District Judge, Muzaf fargarh vide judgment and decree dated 14.6.1990. In the given circumstances legal remedy available to the petitioners/judgment debtors was only to file revision petition in terms of Section 115, C.P.0 which was not availed, as a consequent of which ex-parte judgment and decree dated 26.4.1976 passed by learned Civil Judge, Kot Addu attained finality . The grounds taken in the petition under Section 12(2), C.P.C could have been taken in that revision petition but the petitioners preferred tore-agitate the matter before learned trial Court by moving application under Section 12(2), C.P.C on 1.10.2000 mainly on the ground that ex- parte decree dated 26.4.1976 was outcome of fraud, mis-representation, collusion and as such ineffective upon their rights. The main grounds of attack in that application were (a) predecessor-in-interest of the present petitioners was not served with the process; (b) the pre- emption money in ex-parte decree was not fairly fixed by learned trial Court; (c) the decree was based on the report of local commission but the predecessor-in-interest of the present petitioners was not summoned to join proceedings of local commission; (d) the Court-fee was not deposited by the pre-emptor/predecessor-in- interest of contesting respondents; and lastly (e) that 1/5th of pre-emption money was not deposited within time frame given by the Court. The petition/application was hotly contested by contesting respondents. To resolve controversy between the parties following issues were framed:
1. Whether the application is not maintainable in, its present form? OPR.
2. Whether the application is time barred? OPR.
2-B Whether the petitioners filed an application for cancellation of decree which was dismissed vide dated 6.11.89 and this application is not maintainable? OPR.
2-C Whether the applicants are stopped to file this application by their words and conduct? OPR.
2-D Whether the particulars of this application are incomplete thus the application is not maintainable? OPR.
3. Whether the decree dated 26.4.1976 is liable to be set aside as prayed for? OP A.
4. Relief The revision petition filed by the petitioners against the order accepting application under Section 7 Rule 11 and rejecting application under Section 12(2), C.P.C was accepted and matter was remanded by learned Addl. Distt.
Judge while framing following additional issues: 2-E Whether the suit was hit, by the provision of Section 22 of Pre-emption Act, 1913? OP A.
2-F If the above issue is answered in affirmative, whether the learned Civil Judge had jurisdiction to pass the impugned judgment and decree. If so, the impugned judgment and decree was void ab ignition? OP A.
2-G If the above issue is proved in affirmative, whether the question of limitation arises against the judgment and decree, which is void ab ignition? OP A.
6. After recording evidence of the parties learned trial Court vide impugned order dated 14.11.2016 while recording issue-wise finding dismissed application of the petitioners. The revision petition preferred by the petitioners was dismissed by learned Addl. Distt. Judge Kot Addu vide order dated 22.4.2019. As such by approaching this Court in Constitutional jurisdiction, the petitioners have assailed legality , propriety of the aforesaid judgments whereby their application under Section 12(2), C.P .C was dismissed.
7. Admittedly , the grounds taken in subsequent application in terms of Section 12(2), C.P.C- were the same which were taken by Fazal Hussain, predecessor-in-interest of proforma respondents/one of the judgment debtors in application for setting aside ex-parte judgment and decree and the same were dealt with after recording evidence and issue wise findings against said petitioner/judgment debtor . Thereafter said Fazal Hussain along with the present petitioners filed an appeal against that order and the learned Appellate Court (Addl. Distt. Judge, Muzaf fargarh) dealt with each and every plea of the appellants taken in that appeal. Worth appreciable that Ground No. 6 of memo of appeal was to the effect that limitation for setting aside decree in terms of Section 12(2), C.P.C was three years. In those proceedings as observed by learned Courts below Allah Bukhsh Petitioner No. 1(c), one of the legal heirs of Khora Khan, appeared in witness box but his testimony qua non-service of petitioners predecessor-in-interest in the suit was disbelieved.
8. Whereas in support of application in terms of Section 12(2), C.P.C in affirmative evidence only official witness Wazir Ali, Patwari was produced by the petitioners and remaining plethora of documentary evidence in earlier round of litigation was tendered in evidence. However , at the stage of evidence in rebuttal petitioners No. 1(a) and 1(c), namely , Wahid Bakhsh and Allah Bakhsh appeared as AWs 1 and 2 respectively (Worth-mentioning that Wazir Ali, Patwari already stood examined as AW-1 and as such there is duplicacy of Reference No. of these witnesses) and reiterated their stance taken in the petition moved in terms of Section 12(2), C.P.C. Both of them claimed that their father was not served with the process/summons in the pre-emption suit and as such ex-parte decree was outcome of fraud and mis-representation. Whereas Wahid Bakhsh as AW 1 conce ded that at the time of purchase of land under pre-emption, he was minor and this fact alone shatters authenticity of his testimony . Allah Bukhsh, AW 2 during cross-examination deposed that he has not appeared as AW in the Court of Syed Bahadur Ali Shah, the then learned Civil Judge Kot Addu, to support the petition for setting aside ex-parte decree. Statement of this witness as AW1 recorded on 2.6.1986 by learned Civil Judge Kot Addu is Ex.R.14. During cross-examination (As per Ex.R.14) this witness conceded that Allah Dewaya (decree holder in pre-emption suit) took possession of decreed property three years after sale, meaning thereby that said Allah Dewaya got possession of suit property at the most in the year 1978.
Whereas in rebuttal of the above evidence, the contesting respondents produced Wazir Ali Revenue Patwari as RW.1 (already examined as AW.1) Allah Bachaya Tabbassum Treasurer (RW.3) and Ghulam Farid, Naib Nazir (Civil Court) as RW.4 to prove timely payment of sale consideration in the light of ex-parte decree, whereas Jafar Khan one of the respondents, appeared as RW.2 and negated the version of the petitioners. Moreover at the cost of repetition it is observed that the grounds taken in this petition were the grounds of attack in earlier application for setting aside ex-parte decree which was dismissed and appeal against that order also could not succeed. Thus any subsequent application on the same subject is hit by the provisions of Section 22 of the C.P.C. (Res Judicata).
Reliance is placed on case Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue, Punjab and others (PLD 2003 S.C. 979), Aizazullah and another vs. Provincial Government (K.P.K) through Secretary Education and others [2016 YLR 1873 Peshawar (D.B.)] .
9. Moreover the grounds which we-re pressed before learned Courts below and this Court at the most might be remotely hinting some illegality in the proceedings of learned trial Court while passing ex-parte decree but the same do not fall within the purview of fraud, mis-representation or want of jurisdiction, the very basis to invoke jurisdiction of the Civil Court under Section 12(2), C.P.C. for brushing aside decree of the learned trial Court. It is ground reality that with the afflux of time, pre-emption law has met radical changes, as is known to the litigant public as well as members of legal fraternity and obviously the same has prompted the petitioners to prolong the litigation so as to deprive the decree holder/pre-emptor from fruit of the decree which stood already implemented and possession of pre-empted property delivered to him since long. As such the petitioners have not approached the civil Court with any bona fide and clean hands.
10. The version of the petitioners that before moving the application in terms of Section 12(2), C.P.C. they had no knowledge of ex-parte decree, that they along with other judgment debtor (Fazal Hussain) have not filed appeal before learned Addl. Distt. Judge, Muzaf far Garh and in post remand proceedings. Allah Bakhsh (one of the petitioners) has not appeared in witness box in support of petition for setting aside ex-parte decree is not believable. The litigation initiated by Fazal Hussain, judgment debtor in which the petitioners joined at appellate stage as appellants ended on 14.6.1990 by dismissal of their appeal. Thereafter they kept mum and in 2nd round of litigation in the year 2000 moved application in terms of Section 12(2), C.P.C. Presumption of truth is attached to Court proceedings. Strongest and unimpeachable evidence was required to displace such presumption but no such evidence has come on record. Reference in this regard may be made to cases reported as Waqar Jalal ansari v.
National Bank of Pakistan and anothe r (2008 SCMR 1611), Fayyaz Hussain v. Akbar Hussain and others (2004 SCMR 964), Muhammad Ramzan v. Lahore Development Authority , Lahore (2002 SCMR 1336 ), Zaheer Afzal Chatha v. National Accountablility Bureau through Director-General and another [2018 PCr.LJ Note 9 (Lahore)], and Sheraz Pervaiz Mustafa v. The Special Judge (Rent), Lahore and others [2019 MLD 2095 (Lahore)]. It does not appeal to a prudent mind that the decree holder after getting fruit of decree will resort to frivolous litigation for setting aside said decree. Obviously the petitioners and Fazal Hussain another judgment debtor had joint interest in the suit prope rty and said Fazal Hussain moved application for setting aside ex parte decree. During pendency of that petition even petition for impleading present petitioners (legal heirs of Kora Khan) was moved and contested (as is established from reply to that petition at page 228 (Ex.R.15) of this petition, but order on said petition has not been brought to the notice of the Court. However , record speaks conspicuously that after dismissal of the petition for setting aside ex-parte decree, the petitioners and said judgment debtor jointly filed an appeal but the same was dismissed and as such the application-in terms of Section 12(2), C.P.C. was patently time barred, so was rightly concluded by the learned Courts below . As such the petitioners were fully aware of the above ex-parte decree right from the year of its issuance and in any case on delivery of possession to the decree holder . Reliance in this regard may be placed on cases Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167) and Muhammad Islam v. Inspector-General of Police, Islamabad and others (2011 SCMR 8). In the first mentioned case, the Hon'ble Supreme Court at page 227 has observed as under: "5. .... The object of the law of limitation and the law itself, prescribing time constrai nts for each cause or case or for seeking any relief or remedy has been examined by the Courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is "THE LAW" which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i.e. limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of Section 3 of the Limitation Act, it is obligatory upon the Court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the Courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society . The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the "LA W" itself. "
11. As such no ground exists to interfere, in exercise of Constitutional Jurisdiction of this Court, in the concurrent findings passed by learned Courts below . Even otherwise, in view of above noticed peculiar circumstances of this case, to my view, the petitioners have not approached this Court with clean hands and are re-agitating the issues which stood already settled by Courts of competent jurisdiction only due to changes in pre-emption law. As per settled norms of exercise of jurisdiction under Article 199 of the Constitution the petitioners are not entitled to any 'equitable relief. In this regard reliance can safely be placed on Chief Executive MEPCO and others v.
Muhammad Fazil and others (2019 SCMR 919 ) in which the Hon'ble Supreme Court has held as under: "5. .... where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution"
As such the petitioners have failed to point out that the impugned order is illegal, perverse or without jurisdiction.
The instant petition is, therefore, dismissed with costs Rs.25,000/- (T wenty Five thousand rupees).
12. Before parting with this matter I would like to bring on record my appreciation for invaluable efforts for research based legal assistance rendered by Mr. Muhammad Sher Abbas Awan, Addl. Distt. and Sessions Judge/Senior Research Of ficer of the Lahore High Court Lahore to this Court in the case in hand.