' My this order shall dispose of three revision petitions (C.R.Nos. 128, 129 of 1995 and 154 of 1993) of which two have been filed by Dr. Mian Haseeb Ahmad and one by Mst. Saadat-ur-Rehman. All these revisions are directed against judgment dated 3-12-1995 of the learned Additional District Judge, Haripur.
2. The factual background giving rise to the instant revisions stated in brief, is that land measuring 41 Kanals, 5 Marlas old Khasra No,1314 was jointly owned by Mst. Saadat-ur-Rehman with Muhammad Zaarat Khan and Muhammad Iqbal. The land is situated in Village Pandak, Tehsil Haripur. Two partition mutations bearing Nos.3648 and 3649 were attested on 2-11-1972 and in such partition 10 Kanals 6 Marlas fell into the share of Mst.Saadat-ur-Rehman and was given Khasra No,1314/1 while the remaining land measuring 30 Kanals 19 Marlas (Khasra No, 1314/2 was determined to be the share of Muhammad Zaarat and Muhammad Iqbal.
3.. In the year 1981-82 during the settlement proceeding Khasra No,1314/1 was allotted three new Khasra Numbers 1433,1434 and 1460 whereas Khasra No,1314/2 was allotted new numbers as 1461, 1463 and 1464.
4. Through an award dated 6-6-1972 Land Acquisition Collector acquired 2 Kanals 7 Marlas of land on behalf of the Irrigation Department which was shown as Khasra No,1434 in the Revenue Record.
Later, it transpired that the Irrigation Department, although have made payment in respect of 2 Kanals 7 Marlas to Mst. Saadat-ur-Rehman but was shown in possession of the whole Khasra No,1434 measuring 3 Kanals 4 Marlas.
5. A suit bearing No,524/1 titled "Muhammad Zaarat Khan and others v. Mst. Saadat-ur-Rehman" was filed on 24-9-1985 on the ground that the defendant has made encroachment in Khasra No,1561 by constructing a house thereon. It was prayed that the house be demolished and possession underneath of the house be given to the plaintiff.
6. Mst. Saadat-ur-Rehman defendant in case in Suit No,524/1 also filed a suit bearing No,767/1 seeking declaration that her landed property measuring 17 Marlas which was wrongfully occupied by the Irrigation Department should be treated towards Muhammad Zaarat Khan and Muhammad Iqbal, defendant in her suit. She also demanded that her deficient share of 17 Marlas be made good out of Khasra No,1461.
7. The learned trial Court on acceptance of Suit No,524/1 passed a judgment and decree and ordered the plaintiff to deposit Rs,1,30,080 as compensation for the improvements carried out by construction of house which amount was duly deposited by the respondents/decree-holders.
' Suit No,767/1 filed by Mst. Saadat-ur-Rehman was, however, dismissed.
8. Mst. Saadat-ur-Rehman aggrieved of the two orders of the trial Court both in Suits Nos.524/1 and 767/1 filed two separate appeals but the same were dismissed.
9. That when the execution proceedings in respect of Suit No,524/1 commenced, Dr. Mian Haseeb Ahmad (son-in-law of Mst. Saadat-ur-Rehman) filed an objection petition coming forth with a claim that the decreed property was in his possession as owner. He based his claim by pleading that the said property was given to him by his mother-in-law as gift and he was in the actual and physical possession of the property comprising a house.
10. Dr. Mian Haseeb also filed an application under section 12(2) read with section 151, C.P.C. In the Court of Additional District Judge and challenged that the judgment and decree passed in Appeal No,19/13 in respect of Suit No,524/1 was based on fraud and he being the donee of the suit land has constructed a house thereon and was in his occupation. He prayed that he was a necessary party to the entire proceedings but, was intentionally left out and was not impleaded as party in the suit in order to conceal the fact of gift in his favour made by Mst. Saadat-ur-Rehman which tantamount to fraud.
11.. Mst. Saadat-ur-Rehman (now dead) also filed an application under section 12(2), C.P.C.
Challenging the legality of the judgment and decree passed in Appeal No,1913 on the ground that the same has been obtained through fraud, the detail whereof she has stated in her application in paras. 2, 3 and 4 which are to the effect that Zaraat Khan being ex-Girdawar in the Revenue Department through deceitful means and by collusion with the Revenue Staff has wrongly shown in the Settlement of 1981-82 the land in possession of Irrigation Department as 3 Kanals 4 Marlas instead of 2 Kanals 7 Marlas. She also alleged that Zaraat Khan was respondent No,1 in her petition, being an influential person has removed/concealed the original document as such the land acquired by the Irrigation Department could not be correctly determined while deciding Suits Nos.767/1 and 524/1. Her stand was that the acquisition record (if produced) would prove the collusion and fraud whereby she has been deprived of 17 Marlas.
12. Mst.Saadat-ur-Rehirm on her death was substituted and her cause was pleaded by her legal heirs. The learned counsel for the heirs of Mst. Saadat-urRehman ordantly argued that the learned appellate Court should not have disposed of the application under section 12(2), C.P.C. In a summary manner and without recording evidence. It was also argued that the record was tampered with at initial stage and after the same was traced out, it was incumbent upon the learned Appellate Court to have requisitioned the record. Learned counsel was of the view that if it was accordingly done the collusion could have been proved.
13. A perusal of the record of case (Suits Nos.524/1 and 767/1 ) nowhere shows any tampering therein. The deficiency of area or the non-availability of the requisite record appears to be fallacious and baseless.
14. Mst. Saadat-ur-Rehman throughout the proceeding in either of the suits has accepted that she has received compensation in respect of the acquired land. The statement of Patwari Halqa who produced Fard (Exh.PW.1/1), shows that total area of 10 Kanals 6 Marlas against three Khasra numbers namely 1433, 1460 and 1434. The acquisition record on perusal also shows that it has not changed the position of the respective shares of the parties. The apparent fault which appears from the record is that the Irrigation Department has been shown in occupation of 3 Kanals 4 Mamas instead of 2 Kanals 7 Marlas. It does not mean that there is deficiency in the share of Mst.
Saadat-ur-Rehman of 17 Marlas. The land is there, but appears to have been wrongly shown in occupation of the Irrigation Department.
15. Learned counsel for the petitioners while referring to 1988 SCMR 1380 and 1982 CLC 625 vehemently argued that as held in the referred judgments the appellate Court was not vested with powers to have dismissed these applications in a summary manner.
16. As two of the petitions are arising out of applications filed under section 12(2), C.P.C. As such, at this stage I would like to discuss the scope of application of the said section and thereafter, it has to be applied to the facts of the instant case.
17. Subsection (2) to section 12, C.P.C. Was added through Ordinance X of 1980. The section in its original form debars a plaintiff from instituting fresh suit, in respect of any particular cause of action. But, through the introduction of subsection (2) to the section the Legislation has given a right to any person to challenge the validity of the judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction. The scope of this subsection appears to be further enhanced by giving right to file an application under this subsection before the Court which has passed the final judgment, decree or order.
18. The object of newly-added subsection appears to be to avoid multiplicity of litigation over the same subject-matter/cause of action.
19. This is a beneficial legislation for both the parties to the suit and also those who are not arrayed as party, during the proceedings but whose interest is directly or indirectly involved and it saves all such parties from the agony of a prolong fresh trial. This subsection gives inherent power to the Court passing judgment, decree or order to set aside its own findings, if the same was found to be obtained/passed through fraud and misrepresentation etc.
20. The Court on receipt of an application under this subsection should first see its maintainability and the bona fides intentions of the persons filing the same. If it appears to the Court, that the application is filed to cause delay and is vexatious and is likely to hamper with quick administration of justice the same may be dismissed even summarily. Otherwise the Court on consideration of facts as alleged in the application may, by providing an opportunity to all the concerned parties of leading evidence, come to a final conclusion about the correctness or otherwise of the application.
21. It is a known fact that a civil suit generally takes years in its conclusion. The parties to the suit are well-versed with the facts of their cases. They are given opportunity of adducing evidence in support thereof. As such the conduct of Mst. Saadat-ur-Rehman who came with an application at a belated stage praying the setting aside of the judgment and decree appears to be nothing more than to delay the execution of the judgment and decree passed by the competent Court. Similarly, the conduct of Dr. Mian Hasib Ahmad is exceptionable, according to his own admission he is in possession of house constructed on the disputed property since long. It is also admitted by him that the litigation between the parties was going on and that he was residing in the said house. It cannot be presumed even by any stretch of imagination that during all this time, petitioner was not in knowledge of the fact that the house allegedly constructed and owned by him was subject- matter of the dispute between the parties namely Mst. Saadat-ur-Rehman and Muhammad Zaraat Khan and others. He kept on sitting on fence observing the conclusion of the trial and only filed the application before the appellate Court. True, that he could have filed the application at any stage but I will reiterate and say that his conduct throughout remained such that he appears to have shown his acquiescence.
22. In a case reported in PLD 1988 Lahore 398 an application under section 12(2), C.P.C. Was dismissed when it was found that the same was filed to misuse the process of the Court.
23. Another fact which cannot be over sighted in the conduct of the parties namely Mst. Saadat-ur- Rehman that she did, not challenge the finding of the Appellate Court in Appeal No,17/13 arising out of Suit No,767/1 and the same has become final.
24. As far as Dr. Mian Haseeb Ahmad is concerned, his main submissions are that:--
(a) He is a donee of land from Mst. Saadat-ur-Rehman and has constructed a house thereon,
(b) that an application was moved by him for the appointment of a local commission on which no order was passed,
(c) that the original acquisition of the land was effected from Khasra No,1314/2 and the same was to the extent of 2 Kanals 7 Marlas and it could not be shifted towards Khasra No,1314/1.
25. A perusal of his application shows that it is only confined to his first contention given above(a).
He has got no concern with the other two points, as earlier a commission was appointed during the pendency of the lis between the real parfies. His contention that the sketch map showing the construction of house duly approved by the municipality in his name is not sufficient evidence neither of the ownership nor of its construction.
26. There is yet another circumstance that belies the stand of Dr. Mian Hasib Ahmed when Mst.
Saadat-ur-Rehman in her written statement has denied to have transferred any land/site to Dr. Mian Hasib Ahmed and she has categorically stated that he only used to visit the house occasionally.
27. On the non-appointment of Local Commission the learned counsel relied on PLD 1983 Lahore 349, 1990 CLC 889 and PLD 1991 Karachi 205. There is difference between avoiding to decide an application in a suit and not deciding an application. It appears that before the lower Court the application for the appointment of Local Commission was never pressed as such while placing reliance on PLD 1987 Peshawar 40 and 1982 SCMR 489 it is held, that where a ground was taken but was not pressed, the same to be regarded as having been abandoned for all legal intents and purposes.
28. Award through which the land measuring 2 Kanals 7 Marlas was acquired shows that the same was in respect of Khasra No,1314/1. The payment of vouchers in respect of the acquired land also contains reference to two partition mutations and the receipt of total amount by Mst. Saadat-ur- Rehman. The acquisition was completed in the year 1972 and the oral evidence in respect of so- called gift is to the effect that the property was gifted in the year 1978.
29. In view of the facts and circumstances given above the conduct of the parties and their respective evidence led before the trial Court and their attempt to set at naught the judgments and decrees of the lower Courts through this revision petition(s) have got no force.
30. Resultantly all the three petitions are dismissed. The parties are, however, left to bear their own costs. The judgment and decree passed by the trial Court and confirmed in appeal are upheld.