' One Khushi Muhammad brought a civil action against Khurshid Ahmad and Rana Muhammad Sarwar for possession of a residential property,situate in Sharif Colony, Sahiwal, and for recovery of Rs,4,500 as mesne profits. Suit was decreed on 18-9-1990 by Mr. Nasir Ahmad Awan, Civil Judge, Sahiwal. Appeal filed by the judgment-debtor also met the same fate, at the hands of learned Additional District Judge, Sahiwal, Mehr Salabat Khan, who delivered his judgment on 11-9-1990.
This Court subsequently on 18-5-1992 dismissed the revision petition filed by the defendants.
2. Afterwards, Rana Muhammad Sarwar defendant made an application under section 12(2), C.P.C.
It was dismissed in liminc, with costs of Rs,5,000 on 24-5-1992 by Mr. Nasir Ahmad Awan, Civil Judge, which order was endorsed by the Additional District Judge, Sahiwal, Mehr Ghulam Farid Khan, vide his order dated 17-11-1992, dismissing the revision petition, preferred by Muhammad Sarwar. Validity of these orders has been brought under challenge by Rana Muhammad Sarwar, by filing a writ petition in this Court.
3. In the first round of litigation Khushi Muhammad had filed an ejectment application against Khurshid Ahmad and Rana Sarwar; but the same had been dismissed on 1-4-1987 by the Rent Controller, holding that relationship of landlord and tenant did not subsist between the parties to the litigation. Khushi Muhammad then had to avail of the other option, namely a civil action for possession of the property.
4. According to the writ petitioner, Muhammad Sarwar, all these proceedings had been initiated and carried on, without his knowledge, by Khushi Muhammad and Khurshid Ahmad, in collusion with each other. Rana Sarwar states that he was an unauthorised occupant of this plot and had spent lacs of rupees in constructing a house over there. His possession had to be rregularised under the Katchi Abadi Scheme with reference to the Jinnah Abadis Act, 1986; but it was earmarked in the name of Khushi Muhammad, in whose favour a deed was executed by the Municipal Committee, conferring on him the proprietary title. This was done in derogation of his entitlement, according to Rana Sarwar.
5. However, he has given no explanation as to why did he remain in state of inaction and not make an endeavour to have the property transferred in his name in a regular manner. He must have throughout been associated with the exercise that culminated in transfer of the property, in the name of Khushi Muhammad, and such an eventuality could not possibly occur in void and he was not expected to have remained ignorant of all that, particularly as his name figured amongst the unauthorised occupants of such plots in the Survey Register, as is claimed by him. The entry had been amended or corrected by the concerned authority and the name of Khushi Muhammad asserted instead. It was found on inquiry that Rana Muhamad Sarwar had actually been in occupation and enjoyment of the property as a tenant under Khushi Muhammad. That was why Khushi Muhammad had initially filed an eviction petition against Rana Sarwar before the Rent Controller.
7. The litigation between the parties spread over a period of about six yeaRs, Application under section 12(2), C.P.C. Was submitted by Rana Muhammad Sarwar about 10 months ago. In the proceedings of the civil suit, Khurshid Ahmed and Muhammad Sarwar had jointly engaged a counsel, Mr. Mushtaq Ahmad, Advocate in May, 1987 and submitted written statement in July, 1989.
A reply to the application for temporary injunction was filed by them in October, 1989. It was accompanied by an affidavit sworn by Rana Sarwar. Learned counsel appearing for the writ petitioner (Rana Sarwar) maintains that both the Courts below have presupposed existence of these facts, without caring to find out, if, as averred by the applicant, he had verily no knowledge of the proceedings throughout. In a slipshod or summary way the Courts below disposed of the plea of the petitioner without trying to appreciate the same and this has occasioned serious miscarriage of justice. Had he been provided an opportunity to lead evidence, he could have established his assertions, it is urged with vehemence.
8. It is, however, to be kept in mind that generally provisions of section 12(2), C.P.C. Are invoked by an unsuccessful litigant as a last resort and it is not obligatory for the Court to give to such move 'treatment' of a civil suit and embark upon determination of controversy involved, all over afresh.
Bona fides of the applicant and apparent soundness of his averments have to be examined preliminarily by the Court and if it does not find itself persuaded to believe what is being pleaded by the petitioner, it may refuse to proceed further, since a detailed inquiry to be undertaken in the manner of a civil action, which is likely to stretch over years, may amount to subjugation to crafty designs of a clever litigant, that may bring in its wake frustration to the decree-holder or the rightful claimant; although in genuine cases, if ostensibly or manifestly a person has been wronged and defrauded, and he has chosen to invoke in his aid the provision in question the same would warrant an objective appraisal of such plea and its thorough scrutiny, to be made in the light of necessary evidence.
9. In the present case, the petitioner's plea is not just restricted to the allegation that the proceedings had been conducted, to his absolute ignorance; what he maintains is that Khushi Muhammad and Khurshid Ahmad had acted in active connivance with each other to keep him (Muhammad Sarwar) in complete dark. However, if that in fact had been the case, the litigation would not have consumed lot many yeaRs, It is to be noted that at every stage a real contest was put in by Khurshid Ahmad before the Rent Controller, as also before the Civil Judge and the Additional District Judge. When Khushi Muhammad had laid a claim to a plot in dispute and was fighting for it, Muhammad Sarwar, claiming to be its occupant, could not possibly remain unaware of the moves made by the rival claimant (Khushi Muhammad). It seems certain, as has also been observed by the two Courts below, that Rana Muhammad Sarwar is out to abuse the process of law, by pretending ignorance, and alleging collusion between Khurshid Ahmad co-defendant and the transferee of the plot, Khushi Muhammad plaintiff, in an endeavour to perpetuate his unlawful possession. The learned Civil Judge even opted to penalize him by levying special costs.
Constitutional jurisdiction of this Court for its exercise has indeed a 'sensitive' as also a 'limited' scope and not an unlimited or an undefined sphere. It must be taken to be 'immune' or 'alien' to the proceedings of the kind in question, aimed at nullifying or eliminating the gains, the successful litigant has achieved, after having remained engaged in litigation of grimly contested character, spread over several yeaRs, I proceed to dismiss in limine, the writ petition, being otherwise also bereft of merit.