Succinctly, the petitioner Mst. Zubaida Bibi instituted a suit for Specific Performance of agreement against the respondent No.2, which was duly contested by the respondent No.2. The respondent No.2 filed suit for declaration, which was contested by the petitioner. The learned trial Court vide consolidated judgment and decreed dated 11.07.2013 decreed the suit in favour of petitioner and dismissed suit of the respondent No.2; appeals filed against the said consolidated judgment and decree was dismissed vide judgment and decree dated 19.11.2015 and revision petitions were also dismissed vide consolidated judgment dated 29.03.2017 by this Court. The respondent No.2 filed two separate CPLAs in the Supreme Court of Pakistan which were dismissed vide consolidated judgment dated 03.10.2017. After decision of the Supreme Court of Pakistan, the execution petition of the petitioner started and sale deed was registered on 14.12.2017 in the name of the petitioner, where-after the execution petition was consigned being satisfied on 27.07.2018. The respondent No.3 instituted a suit for specific performance on the basis of purported agreement to sell dated 02.08.1998 against the respondent No.2, which is still pending. The respondent No.3 filed an objection petition against the aforesaid judgment and decree in the execution petition but the same was dismissed as withdrawn on 27.01.2018. On 16.10.2017, the respondent No.3 filed an application under section 12(2), Code of Civil Procedure, 1908 before the learned trial Court on the basis of above said agreement to sell dated 02.08.1998 and the same was dismissed as withdrawn on 25.11.2017. The respondent No.3 filed second application under section 12(2) CPC before this Court by suppressing the facts that CPLAs from Supreme Court of Pakistan, his objection petition and earlier petition under section 12(2) CPC were dismissed and his aforesaid suit is still pending and under wrong facts obtained order dated 29.03.2017 with the observation that the respondent No.3 may file application under section 12(2) CPC before the learned trial Court. On 29.12.2017, the respondent No.3 filed his third application under section 12(2), Code of Civil Procedure, 1908 before the learned trial Court, which was resisted by the present petitioner. The learned trial Court vide order dated 29.05.2018 dismissed the said application on merits. The respondent No.3 being aggrieved preferred an appeal, which was converted into revision petition and the same was accepted vide impugned judgment dated 28.11.2019 by the learned Addl. District Judge and order dated 29.05.2018 was set aside with further observation that when the court comes to the conclusion that it has no jurisdiction only application under section 12(2) CPC is to be returned for its presentation to the proper forum; hence, the instant constitutional petition.
2. Heard.
3. First of all it is observed that one has to come in the Court with clean hands; however, the respondent No.3 while filing C.M.No.121423 of 2017 in C.R.No.4624 of 2015 did not disclose the factum of filing of CPLAs No.1492-L and 1493-L of 2017 against the judgment dated 29.03.2017 passed by this Court in C.R.No.4624 of 2015 and 868 of 2016 as well as facts of filing objection petition in the learned Executing Court. The respondent No.3 also did not disclose the factum of instituting suit for specific performance on the basis of agreement to sell dated 02.08.1998; meaning thereby the said order dated 20.12.2017 was obtained by playing fraud and concealment of facts by the respondent No.3. Had the respondent No.3 disclosed the above said facts, the result would have not been the same as was ordered while passing the order dated 20.12.2017. It is also a notable fact that the respondent No.3 is son in law ( )of respondent No.2, against whom decree in respect of specific performance of agreement to sell dated 31.10.1998 registered on 02.11.1998 was passed in favour of the present petitioner. As the suit of the respondent No.3 is pending adjudication against the respondent No.2 therefore, any observation in respect of relationship and conduct of the said respondents may prejudice the parties, therefore, I hold my hands back from giving any observations.
4. It is observed, with brevity, that the Supreme Court of Pakistan while passing consolidated judgment dated 03.10.2017, deciding CPLAs No.1492-L and 1493-L of 2017, dilated upon and discussed facts of the case in detail and dismissed the appeals by observing as such that, 'Consequently, both the titled Civil Petitions being without merit are dismissed and leave declined.' (emphasis supplied); therefore, keeping in view the ratio of judgment reported as Sahibzadi Mehar-un-Nisa and another v. Mst. Ghulam Sugran and another (PLD 2016 SC 358), considering the principle of merger, the proper forum for filing application under section 12(2), Code of Civil Procedure, 1908, is Supreme Court of Pakistan. The relevant part of the said judgment is reproduced as under:- '..... It is thus clear that where a matter has been heard and decided by this Court in appeal and the verdict of the lower forum has been affirmed on merits the rule of merger shall duly apply, and thus the application under section 12(2) of the C.P.C. subject to the exceptions mentioned in the concluding part of this judgment can be competently filed before this Court.'
While concluding it was further held that:-
(iii) In the cases of reversal or modification of the judgment of the High Court(s), or those affirmed in appeal (where the matter does not fall within the exceptions) the judgment of the Supreme Court shall be deemed to be final for moving an appropriate application on the plea of lack of jurisdiction, misrepresentation and fraud;'
5. In view of the above, it is concluded that the respondent No.3 did not come in the Court, while filing C.M.No.121423 of 2017, with clean hands, therefore, the order dated 20.12.2017 was obtained through concealment of facts and the respondent No.3 also concealed the factum of filing of an independent suit for specific performance of purported agreement to sell dated 02.08.1998 against the respondent No.2, who is admittedly his father-in-law {{URDU TEXT}} and in order to cause hindrance in the way of the petitioner to enjoy the fruits of the decree, passed in her favour, filed different applications and objection petition. Therefore, the learned trial Court rightly dismissed the application under section 12(2), Code of Civil Procedure, 1908 filed by the respondent No.3. The order passed by the learned trial Court is based on proper appreciation of facts and law than that of the learned revision Court.
6. For the foregoing reasons, the constitutional petition in hand is allowed, impugned judgment dated 28.11.2019 is set aside and that of the learned trial Court dated 29.05.2018 is restored. No order as to the costs.