SAFDAR SALEEM SHAHID, J. This judgment shall dispose of C.Ms. Nos.2755 and 2756 of 2015, W.P.
No.10716 of 2017 (for grant of permission to re-deposit of the pre-emption amount) and W.P. No.10151 of 2017 (for restoration of possession) as common orders/judgments and decrees have been assailed therein.
2. The august Supreme Court of Pakistan remanded the aforesaid petitions with the following observations: "For the reasons stated above, the impugned orders dated 05.05.2020 passed in Writ Petition No. 10145 of 2017 BWP, Writ Petition No.10716/BWP, Writ Petition No.10515 of 2017/BWP, writ petition No.10718 of 2017/BWP and C.M No.2752 of 2015 in C.R No.355- D of 2020 and C.M No.2753 of 2015 in C.R No.356-D of 2020 are set aside. The above stated writ petitions and applications shall be deemed to be pending hearing before the High Court, and after providing opportunity of hearing to the parties, the same are to be decided afresh, in the light of findings recorded hereinabove.
We are sanguine, the High Court would appreciate the delay in the resolution of the dispute before the courts, and decide the remanded matter within a period of sixty days."
3. Brief history of the case is that Niaz Ahmad deceased/respondent No.1 filed suit for possession on the basis of pre-emption against Muhammad Tufail and others/petitioners/defendants which was decreed by learned trial court vide judgment and decree dated 23.11.1995. Being aggrieved by the said judgment and decree, the petitioners/defendants filed an appeal which was dismissed by learned Addl. District Judge Bahawalnagar vide judgment and decree dated 20.05.2000 and upheld the findings of learned trial court. The petitioners/defendants approached this Court through instant civil revision and lateron instant civil revision was dismissed on account of non- prosecution vide order dated 26.10.2000. The respondent No.1/plaintiff Niaz Ahmed deceased had filed execution petition which was pending adjudication before the learned trial court. During the proceedings of said petition he filed an application on 08.12.2020 before the learned trial court and produced the attested copy of order dated 26.10.2000 on the ground that instant civil revision has been dismissed for non-prosecution, hence stay order issued on 20.07.2000 stands infructuous. The decree holders also filed an affidavit along with said application contending therein that said civil revision was dismissed on 26.10.2000 due to non-prosecution and till yet no application has been filed for its restoration. Vide order dated 08.12.2000 the learned executing court issued warrant of possession and concerned revenue officials in compliance with order of warrant of possession vide order dated 19.12.2000 completed the proceedings and submitted his report to Tehsildar who transmitted the same to concerned Assistant Commissioner on 03.01.2001 who verified the said proceedings. Thereafter the report was presented before the learned executing court on 09.01.2001 and possession of the land in dispute was handed over to the decree holders.
4. It is pertinent to mention here that Niaz Ahmed respondent No.1/deceased filed two different suits for possession through pre-emption one against Muhammad Saleem etc and other against Muhammad Tufail etc. The petitioners/defendants filed C.M No. 605 of 2001 for restoration of civil revision which was dismissed on 26.10.2000 by this Court due to non-prosecution. This C.M. was filed on 23.04.2001 and vide order dated 31.01.2006 notice was issued to respondents/plaintiffs.
Record reveals that on 27.08.2002 Ijaz Ahmad Chaudhry, Advocate appeared on behalf of the respondents and thereafter the case was not fixed, rather it was fixed on 22.06.2011 and on the said date counsel of the applicants/petitioners appeared before the Court and main civil revision of the petitioners/defendants was restored to its original number. During the proceedings of civil revision the respondents/plaintiffs were proceeded against ex-parte. Vide judgment dated 24.04.2012 passed by this Court instant civil revision was allowed ex-parte and judgments and decrees passed by both the courts below were set-aside and suit filed by the respondent/plaintiff Niaz Ahmad stands dismissed with costs throughout. During this period in between dismissal of civil revision due to non-prosecution on 26.10.2000 and restoration of the same vide order dated 22.06.2011 the vendees filed an application before the learned trial court for withdrawal of pre- emption amount which was allowed by the learned trial court and same was withdrawn and received by the vendees/petitioners according to their respective shares. The vendees/petitioners remained silent for long time and then filed an applications under Order 144/151, C.P.C. for restoration of possession on 24.04.2015 and thereafter also filed the applications for re-depositing the sale consideration amount which was withdrawn by them earlier. The pre-emptor/plaintiffs filed C.Ms. Nos. 2755 and 2756 of 2015 under Order XLI, Rule 21 read with section 151 of C.P.C. before this court seeking rehearing of main civil revision which was decided ex-parte by this court vide judgment dated 24.04.2012 wherein Niaz Ahmed respondent/plaintiff was proceeded against ex- parte. The aforesaid C.Ms. were dismissed by this Court vide order dated 05.05.2020. In the said order it was held by this Court that Article 171 of the Limitation Act, 1908 provides period of 60-days for filing such like applications by the legal representative of the deceased plaintiff or defendant for setting aside an order or judgment made or pronounced in his absence from the date of order or judgment but in the present case, the instant application has been filed beyond the said period as the impugned judgment and decree was passed on 24.04.2012 and the said application was filed in the year 2015 i.e. 26.06.2015 as is evident from the date mentioned over it. As such the application in hand is also beyond the period of limitation. So on this ground of limitation C.Ms filed by the legal heirs of Niaz Ahmad deceased-plaintiff/pre-emptor was turned down. The order passed by this Court in the aforesaid applications was assailed by the applicants/legal heirs of the deceased Niaz Ahmed through Civil Petitions Nos. 1982, 1983, 1984, 1985, 1986 and 1987. The Hon'ble Supreme Court of Pakistan vide order dated 22.09.2020 decided the aforesaid civil petitions with the following observations:-- "The original vendees of the disputed pre-empted property, after obtaining the order of the High Court in setting aside the decrees passed in favour of the pre-emptors, approached the civil court with four applications, seeking to relief; firstly to redeposit the pre-emption money, which they had withdrawn in Civil Suits Nos. 482 and 484 of 1992; and secondly, they moved for the restitution of the possession of the disputed property. The claim of the original vendees of the disputed pre-empted property for the redeposit of withdrawn pre-emption money was rejected by the trial court for having become functus officio after passing of the pre-emption decrees in 1995. While other claim for seeking possession was not positively considered as the pre-emptors had moved applications for the rehearing of two revision petitions, which were then pending before the High Court (C.Ms. Nos. 2752 and 2753 of 2015). The appellate court confirmed the decision of the civil court which on the challenged before the High Court in its constitutional jurisdiction (Writ Petition No. 10716 of 2017/BWP and Writ Petition No.10716 of 2017/BWP) was maintained in one of its impugned judgment dated 05.05.2020, in terms that: "the present petition relates to the matter pertaining to C.R No.356-D of 2000, wherein miscellaneous petitions for setting aside the judgment and decree dated 24.04.2012 passed by his Court in the said revision petition, have been decided today; thus there is no need to further dilate upon the instant petition. After consultation, the petitioners may approach the learned trial court afresh by moving application in his regard so as to get their grievance redressed, which will decide the same on merits without being prejudiced by Disposed of accordingly."
The decree-holder/pre-emptors on the other hand, moved applications for rehearing of the ex- parte judgment of the revisional court (C.Ms. Nos.2752 and 2753 of 2015) which were dismissed vide the order Common impugned order of the High Court dated 05.05.2020.
In the said order it was also observed by the Hon'ble Supreme Court of Pakistan that "the conduct of the original vendees of the disputed pre-empted property qua their withdrawing the pre- emption money and at the same time pursing the restoration of their civil revisions before the High Court, and not informing the revisional court regarding the same was not attended by the revisional court in the impugned decisions of 05.05.2020. In the circumstances a very important question of fact has escaped the attention of the High Court, while passing the impugned orders in its constitutional and revisional jurisdirctions. This warrants positive consideration of this court.
When the worthy counsel for the parties were confronted to the said legal position, they were unable to controvert the same, and agreed for remand of the matter to the High Court for rehearing and decision afresh" With these observations Supreme Court remanded the matter to this Court with the direction that all the decisions passed by this Court through order dated 05.05.2020 in C.Ms. and writ petitions shall remain set aside. The C. Ms. filed in civil revisions and writ petitions would be deemed to be pending for hearing before this Court and it was further directed that after hearing the parties the matter be decided afresh.
5. Learned counsel for the applicants/legal heirs (in C.Ms. Nos.2755 and 2756 of 2015) of the deceased Niaz Ahmed pre-emptor argued that after withdrawal of pre-emption amount, the claim of the vendees has become redundant and they have no connection with pre-empted land as possession was delivered to the pre-emptor and in lieu of that vendees had withdrawn their pre- emption amount from the court. It was further argued that vendees did not mention any thing before the learned trial court at the time of withdrawal of pre-emption amount regarding the pendency of any civil revision before the High Court, otherwise, the amount could not be disbursed to them; that this mala fide on the part of the vendees is absolutely clear when they filed applications for restoration of civil revision before Hon,ble High Colin wherein they did not mention anything regarding the warrant of possession issued by learned executing court which was completed on 09.01.2001; that proceedings of learned trial court in execution of warrant of possession clearly shows that vendees were also present at the time of getting the possession of the land in dispute by the decree holder but the vendees did not mention this fact while filing applications for restoration of civil revision before this Court. The fact of withdrawal of pre-emption amount was also not mentioned by the vendees in the aforesaid application, even they did not disclose this fact at the time of advancing the arguments on the aforesaid application, otherwise order dated 22.06.2011 whereby civil revision was restored to its original number might could not have been passed as such. It was further contended that applicants/legal heirs of the deceased pre-emptor came to know about the factum of impugned ex-parte judgment passed in civil revision on the date when the application for restoration of possession was filed by the vendees/ judgment debtor and thereafter immediately the applicants filed the C.Ms for re-hearing of civil revision; that prior to that neither the vendees/judgment debtor disclosed the matter regarding the acceptance of civil revision by this Court nor any notice was received to applicants in this regard whereas purposely the vendees/judgment debtor had been concealing the factum of proceedings of possession taken by the pre-emptor/applicants and withdrawal of pre-emption amount by them(vendees) from the court. It was further argued that this is also evident from the record that when civil revision was filed on 20.07.2000 after passing the decrees by the both the courts below, C.M. was also filed along with the said civil revision wherein interim relief was granted to the effect that status quo would be maintained regarding the possession of the pr-empted land whereas when the pplication for restoration of civil re' ion was filed on 23.04.2001 no such a," iication was filed by the vendees/defendants; that the grounds taken by the vendees/defendants are very strange hichhave no relevancy regarding the facts and no document was filed in support of ground taken by the vendees/defendants. It was further argued that applications for rehearing of civil revision may be converted into the application under section 12(2) of C.P.C. because the judgment dated 24.4.2012 has been obtained by the vendees/defendants by concealing the factual position and the real facts from the court as the application for restoration of civil revision had become infructuous when the vendees/ defendants had withdrawn the pre-emption amount from the court.
6. On the other hand, learned counsel for the vendees/defendants contended that withdrawal of pre-emption amount from the court had no effect to the status for filing the application for restoration of civil revision because any illegal order may be called by this court at any time; that no solid ground has been agitated by learned counsel for the applicants/legal heirs of deceased pre-emptor Niaz Ahmad for setting aside the impugned judgment and decree as the same has been passed in accordance with the law; that even otherwise the revisional court can exercise revisional jurisdiction without intervention of either of the party when it finds that the learned courts below have committed material illegality and irregularity or have failed to exercise vested jurisdiction or have exercised a jurisdiction not vested in them by law as is provided in sub-clause
(1) of section 115 of the Code of Civil Procedure, 1908; that this court while passing the impugned judgment and decree has acted in accordance .with law even in absence of the applicant's predecessor. It was further argued that since impugned judgments and decrees passed by both the courts below were totally against the law and facts, therefore, it will not disturb the defendants/vendees that they had withdrawn the pre-emption amount deposited in the court; that impugned judgment has been passed by this court in accordance with law after discussing the whole material available on record and suits of the pre-emptors were rightly dismissed by this Court and vendees were unable to file an application for restoration of the possession of the suit land and they are ready to deposit the pre-emption amount which they had already withdrawn from the court. It was further argued that there was no need to mention the fact of withdrawal of pre-emption amount before this Court as it has no effect on the merits of the case because anything which has been passed against the law can be reversed by the court even without filing of the application of the effectee.
7. Arguments heard. Record perused.
8. There are so many questions in this proposition. This is an admitted fact that till the filing of the civil revision, both the courts below decreed the suit for possession through pre-emption in favour of the pre-emptor Niaz Ahmed. Against the judgments and decrees passed by both the courts below the judgment debtor/vendees filed civil revision before this Court. The defendants/vendees filed civil revision and when this civil revision was dismissed due to non-prosecution the decree holder who had already filed an execution petition before the learned trial court submitted the copy of the order of the court for dismissal of civil revision and got warrant of possession in their favour and subsequently they got the possession of the suit land. Now six months after the dismissal of the civil revision and after four months of the proceedings of warrant of possession the vendees/judgment debtor filed an application for restoration of civil revision. In the said application they did not mention anything regarding the proceedings of warrant of possession of the suit land whereas record shows that they were present in the said proceedings and it was mentioned by the revenue officials regarding the status of possession as they asked them whether they had any stay order regarding the property in dispute or not and on their denial from the same, proceedings of the warrant of possession were completed by the revenue officials in accordance with law. The vendees/defendants had moved the application for withdrawal of pre-emption amount from the court and as per procedure all the vendees signed over the application and received their respective shares. The learned counsel for the defendants/vendees was specifically asked that whether he had record of the application which the vendees/defendants had filed before the Civil Court for withdrawal of pre-emption amount he straightway replied that he had no document in this regard, rather that application was handed over to the Nazir of Civil Court when it was allowed by the concerned court and that record perhaps is not available. The logic mentioned by counsel for the vendees/defendants that vendees did not deem it necessary to inform the court regarding the withdrawal of amount or mentioning the taking over the possession of the decree holder is very strange because if such situation had been mentioned before the court, the situation would have been different. Conduct of the respondents/defendants-vendees shows that they had not come with clean hands and any discretionary relief or even relief would not available to a person who comes to court with unclean hands. Reliance is placed on cases reported as Mirza Nazeer Ahmad Bain v. Additional District Judge, Kasur and 2 others (1996 CLC 1616) and Niaz Muhammad v. Mst. Noori (1997 MLD 406). In my view, in the application the applicants/legal heirs of the deceased Niaz Ahmed pre-emptor has mentioned the reason that impugned judgment dated 24.04.2012 was obtained by the defendants/vendees by concealment of facts from the court, falls within the provision of section 12(2) of C.P.C. because it fulfills the required D ingredients of section 12(2), C.P.C. which is reproduced as under:-
12. Bar to further suit. ---(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such case of action in ay court to which the Code applies.
((2) Where a person challenges the validity of a judgment decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the court which passed the final judgment, decree order and not by a separate suit).
The applicants have filed the C.M and also annexed the affidavit with the said C.M but that C.M was just treated as rehearing of civil revision under Order XLI, Rule 21 read with section 151 of C.P.C. which was turned down by this Court vide order dated 05.05.2000. After perusing the contents of the said application and hearing the arguments of both the learned counsel for the parties I am of considered view that instant application for rehearing of civil revision should be converted into the application under section 12(2) of C.P.C. because law is based on equity, the discretionary relief would be available to a person who comes to court with clean hands. The main point of determination in this proposition was that what was the procedure for withdrawal of deposited pre-emption amount in the court. Under the rule 29 Chapter 8-D Volume of the Lahore High Court Lahore a person files an application for withdrawal of amount wherein he mentions that the suit had been decided and no litigation is pending, the court obtains a report from the office/Civil Nazir regarding the deposit of amount and verifies the contents of the application and then allows the same. Prima facie it seems that when the vendees filed an application in the court they mentioned that there was no further litigation pending and they sought permission for withdrawal of the amount which was allowed meaning thereby that they concealed the factum of the filing of the application for restoration of civil revision before this Court. Infact they impliedly accepted the decision of the courts below and in this regard their case is at the same footing as that of Muhammad Saleem vendee who effected compromise with the pre-emptor in the other suit and got the pre-emption amount as per his share. The other important factor is that when the order for restoration of civil revision was passed on 22.06.2011 the vendees did not file any application before any court for restoration of the possession or for depositing of the pre-emption amount which they had already withdrawn from the court, immediately, rather it was filed after elapse of more than three years after restoration of civil revision which itself reflects mala fide on their part. So in my view the vendees were not in the field and they had accepted the claim of the pre-emptors and withdrew the pre-emption amount from the court and in this regard their C.M. for restoration of civil revision had become infructuous, therefore, the order which has been obtained by way of concealment of facts is not sustainable in F the eyes of law. This is also important that pre-emptor has preferential pre-emptive right qua the vendees being owner of the adjacent land with the property in dispute and it was proved, secondly he followed all the orders of the court regarding the deposit of Zare-Soim as well as deposit of remaining decretal amount within stipulated period granted by the court, therefore, a person who has respect for law deserves grace and certainly the discretionary relief can also be awarded to such a person. It is settled principle that a man, who seeks equity must come with clean hands. Law only favours those, who come with clean hands. On the other hand the defendants/vendees have concealed the material facts from the court, hence they are not entitled for any discretionary relief from the court.
9. The crux of above discussion is that the CMs filed by the applicants/legal heirs of deceased Niaz Ahmed pre-emptor for re-hearing of civil revision are hereby converted into the application under section 12(2) of C.P.C. read with section 151 of C.P.C. under the constitutional jurisdiction of this Court which are accepted and it is declared that impugned judgment and decree dated 24.04.2012 passed by this Court was obtained by concealment of facts, therefore, same is not sustainable in the eyes of law, hence judgment and decree dated 24.04.2012 is set aside. With these observations the suit for possession through pre-emption which had already been decreed in favour of Niaz Ahamd deceased/plaintiff/pre-emptor by the both the courts below stands in field. The application filed by the respondents/defendants-vendees for restoration of civil revision was not maintainable, as they had no lien to file the same, with the withdrawal of the consideration amount from the court, they had no right to file the application, hence the said application is dismissed.
10. In view of above decision, W.P. No.10716 of 2017 (for grant of permission to re-deposit of the pre- emption amount) and W.P. No.10151 of 2017 (for restoration of possession) having become infructuous are disposed of.