WIQAR AHMAD, J. This order is directed to dispose of the instant application filed by the petitioners under section 12(2), C.P.C. for setting aside judgment of this Court dated 22.11.2013 passed in C.R No. 59-P of 2013.
2. Initially, plaintiffs Zufiqar Ali and others (respondents Nos. 9 to 14 and 18 herein) had filed a suit for declaration, possession as well as grant of preliminary decree in respect of their shari shares in the property left by their predecessor namely Abdul Rahman deceased, which was accepted and accordingly a preliminary decree was passed in their favour by the learned civil Court vide its order dated 18.05.2010. Subsequently, another suit was filed by plaintiffs Muhammad Navid and others (respondents Nos. 19 to 21 herein) in respect of same property, which was dismissed vide order dated 27.09.2010. The parties aggrieved of both the judgments had filed their separate appeals, which were allowed vide order dated 23.06.2012 of the learned appellate Court and the cases were remanded back to the trial Court for decision afresh. After remand, both the suits were consolidated and after hearing arguments of the parties, preliminary decree was passed in favour of the parties regarding entitlement of their shari shares in the legacy of Mirza Kalan deceased, vide judgment dated 26.09.2012 of the learned civil Court. Appeal filed against said judgment was dismissed by the learned appellate Court vide its judgment dated 22.05.2013. Against judgments and decrees of the two Courts below, Gul Rehman and others including the present petitioners filed a Civil Revision No. 59 of 2013 before this Court, which was also dismissed vide judgment dated 22.11.2013. Then an application for grant of final decree was filed by decree-holders before the learned civil Court.
During said proceedings, local commission was also appointed, who accordingly submitted his report on 03.10.2017 upon which objections were also filed by the present petitioners and other defendants/respondents. In this respect, statement of the local commission was also recorded as C.W.-1. The learned civil Court vide its order dated 19.02.2018 by affirming report of local commission, rejected objections of petitioners and other respondents and passed final decree according to report of local commission. Aggrieved there-from, petitioners and other respondents had filed their separate appeals before learned District Judge, Chitral. Both appeals were dismissed by the learned appellate Court vide its judgment dated 19.06.2019. Feeling aggrieved from judgment of learned appellate Court, Gul Rehman and others filed a Civil Revision No. 29-C of 2019 before this Court, which was also dismissed vide judgment dated 18.01.2021. Now the present petitioners have filed the instant application under section 12 (2) CPC for setting aside earlier judgment dated 22.11.2013 of this Court passed in Civil Revision No. 59-P of 2013 with the following prayer; "it is, therefore, prayed that on acceptance of this application, the Hon'ble Court may be pleased to set aside the impugned judgment/decree dated 22.11.2013 in C.R. No. 59/2013 as well as judgment of civil Court and appellate Court and remand the case back for decision afresh."
3. I have heard arguments of learned for the petitioners, (via video link), learned counsel for respondents and perused the record.
4. Perusal of record reveals that brothers of the petitioners (on the basis of power of attorney executed by them) has been contesting the litigation with other set of respondents vigorously up till this Court in successive rounds of litigation. Respondents Zufiqar Ali and others had initially instituted a suit for declaration as well as grant of preliminary decree in respect of their Shari shares in the property left by their predecessor namely Abdul Rahman deceased, which was accepted and accordingly preliminary decree was passed in their favour by the learned civil Court vide its order dated 18.05.2010. Subsequently, another suit was filed by Muhammad Navid and others in respect of same property, which was also dismissed vide order dated 27.09.2010. Separate appeals filed there-against by both the parties were allowed by learned appellate Court vide its judgment dated 23.06.2012 and the cases were remanded back to the trial Court for decision afresh. After remand, both the suits were consolidated and a preliminary decree was passed in favour of the parties regarding entitlement of their shari shares in the legacy of Mirza Kalan deceased, vide judgment dated 26.09.2012 of the learned Civil Court. Appeal filed against said judgment was dismissed by the learned appellate Court vide its judgment dated 22.05.2013.
Judgments and decrees of the two Courts below were challenged by Gul Rehman and others including present petitioners by filing a Civil Revision No. 59 of 2013 before this Court, which was also dismissed vide judgment dated 22.11.2013. Afterwards, an application for grant of final decree was filed by decree-holders before the learned Civil Court. During the proceedings, local commission was also appointed, who accordingly submitted his report on 03.10.2017, upon which objections were also filed by the present petitioners and other defendants/ respondents. The learned civil Court vide its order. dated 19.02.2018 by affirming report of local commission,' rejected objections of the contesting party and had passed final decree according to report of local commission. Petitioners as well as respondents had filed their separate appeals before learned District. Judge, Chitral. Both appeals were dismissed by the learned appellate Court vide its judgment dated 19.06.2019. Feeling aggrieved from said judgment of learned appellate Court, Gul Rehman and others filed a Civil Revision No. 29-C of 2019 before this Court, which was also dismissed vide judgment dated 18.01.2021. Then the petitioners had all of sudden awoke and came to know that their own brothers had been contesting the litigation without their consent. It is very important to be noted that interest of petitioners as well as their brothers namely Gul Rehman, Aziz-ur-Rehman, Atta-ur-Rehman and Ali Ahmad Jan have been same in the suit. Both the parties have been deriving their title from a common predecessor and it is not believable that the brothers of the petitioners would have made any move against their own interest and interest of the petitioners in the litigation. It is quite apparent that the application in hand is nothing more than reincarnating a dead issue which had already been finalized. Decree of the Court has also been executed which is evident from record of the execution proceedings annexed with the instant petition at page No. 144 and page No. 145. The petitioners could not show that they had ever lodged a criminal complaint for allegedly fabricating power of attorney on their behalf and divesting them from their rights. It seems that they are hands and gloves but want to reopen the concluded litigation again and prolong it for an indefinite period of time. So much so, that the entire family has been part of this litigation and three local commissions had visited the spot which had been constituting the cause of dispute in the instant litigation, but nowhere could the petitioners become aware of the pendency of litigation. This stance is totally unbelievable, nothing more than a false plea, and an afterthought. If such, practice is allowed, then there would be no end to abuse of the process of Court and there would be no finality ever, in litigation between the parties. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of "Trading Corporation of Pakistan v. Devan Sugar Mills Limited" reported as PLD 2018 Supreme Court 928 has held that after exhausting one of the remedies against order of striking out defence, judgment debtor could not be allowed to avail another remedy, as it would amount to abuse of process of Court and multiplicity of proceedings. Relevant observations of the Hon'ble Court given said judgment are reproduced hereunder for ready reference; "In the instant case no reservation was made or avenue kept open while deciding application under section 12(2) C.P.C. either by executing Court or for that matter by the High Court for the appellant to explore other remedy. Where a judgment debtor fails to raise all objections as may be available at the time when execution was resisted by invoking one out of few other available remedies then he is precluded by his conduct to raise any such objection, and all such objections and challenges, if any, will be deemed to have been raised and decided against him.
After exhausting one of the remedies under section 12(2) C.P.C. against the order striking out defence, judgment debtor cannot be allowed to go on expedition to venture another remedy for the same malady, which though available was not invoked, Respondent-tenant cannot be given premium to go on venturing one after another remedy. Permitting such course would be nothing but abuse of the process of law and would amount to encourage multiplicity of proceeding, which cannot be approved."
Hon'ble Lahore High Court had also dismissed the application filed under section 12(2), C.P.C. after finding it an abuse of process of Court in its judgment rendered in the case of "Muhammad Azeem and 3 others v. National Bank of Pakistan and 8 others" reported as 2001 MLD 135 by observing; "For challenging the judgment and decree, dated 6-2-1999 the petitioners are required to make out that said judgment has been obtained by fraud or misrepresentation or it is without jurisdiction. Keeping in view the relationship between respondent No.2 and the petitioners, the original decree was passed on 6-2-1999 and the present petitioners filed application under section 12(2), C.P.C. on 27-5-2000. We, therefore, are of the clear view that if the Court comes to the findings that an application under section 12(2) is improper, mala fide and has been made only to protract the proceedings and to abuse the process of the Court, the Court can dismiss the same summarily without framing any issue or recording any evidence. In arriving at this conclusion we are fortified by the law laid down by the Hon"ble Supreme Court in 1993 SCMR 662 (Ghulam Muhammad v , M. Ahmad Khan and 6 others)."
Observations of the Hon'ble Supreme Court of Canada in the case of "Director of Criminal and Penal Prosecutions v. Robert Jodon and others" reported as 2017 SCMR 1444 may also be quoted here with benefit; "Power of court to manage and control proceedings before it. Court had the power to maintain respect for their authority, which power included the power to manage and control the proceedings conducted before them. Court therefore had an inherent power to control abuse in such regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. Court had to exercise such discretion in a differential manner, but it allowed a court to ensure the integrity of the justice system."
Further reliance in this respect may also be placed on the judgments given in the case of "Muhammad Younts and another v. Venue Gurdas Advani and others" reported. as 2015 CLD 390, the case of "Pakistan Steel Oil Company Limited through Attorney v. Abdul Khalique Gandakwala" reported as 2000 CLC 1196 and the case of "Iqbal Sultan v. Miss Chand Sultan and 2 others" reported as 1990 CLC 366.
The instant application being expressly an effort of the nature of abuse of process of the Court deserves to be buried at the very first instance.
5. In light of what has been discussed above, the instant petition was found meritless and same is accordingly dismissed, in limine.