' This Constitutional petition calls in question the judgment dated 31-7-1995 passed by learned Additional District Judge, Multan, whereby he affirmed the judgment of the learned trial Court dated 20-3-1995 by which an application moved by the petitioner under Order I, rule, 10, C.P.C., was dismissed.
2. Brief facts necessary for the disposal of the instant petition are that the plaintiff (hereinafter called respondent No,1) instituted a suit for declaration against defendants (hereinafter called respondents Nos.2 to 8) seeking a declaration to the effect that he is owner in possession of the suit property (detailed in the plaint) and sale-deeds with regard thereto dated 18-12-1977 (in favour of respondents Nos.3 and 4 by respondent No,2) are also liable to be cancelled being based upon fraud and misrepresentation. During the pendency of suit, the petitioner filed an application under Order I, rule 10, C.P.C., for being impleaded as defendant. This application was hotly contested by respondent No,1, whereas respondent No,6 and respondent No,7 (since deceased, now being represented by his legal heirs as respondents Nos.7-A to 7-D) did not oppose the prayer. The learned trial Court vide its judgement dated 20-3-1995 dismissed the application by holding that:- - "The petitioner has not been able to establish that he has interest or title in the suit property."
' This judgment was assailed by the petitioner through a revision petition, and the same was also dismissed by the learned Additional District Judge vide his judgment, dated 31-7-1995. Hence, this petition.
3. Learned counsel for the petitioner vehemently argues that learned Courts below have proceeded on wrong premises of law and facts while delivering the impugned judgments, resulting in grave miscarriage of justice. Adds that the petitioner did have an interest to the extent of 5 Marlas in the suit property on the basis of a permanent transferred deed, dated 14-12-1978 against which a revision petition filed by respondent No,1 was also dismissed by the Additional Commissioner Revenue/ Administrator, Residual Properties Multan Division vide his order, dated 13- 8-1985; that Mutation No,408 sanctioned in favour of the petitioner on 16-7-1981 was attempted to be cancelled by respondent No,1 on the basis of a compromise decree obtained by him against Haq Nawaz (respondent No,2 herein) on 14-2-1985 (against which an application under section 12(2), C.P.C. Is also pending adjudication) but he could not succeed to get the said mutation cancelled in the revenue hierarchy; that the finding of the learned Courts below to the effect that petitioner's property is different from the suit property, is contrary to the record. It is firmly urged that the learned Courts below have committed material irregularity and illegality while not examining the case in its true perspective.
4. Learned counsel for the respondent No,6 and legal heirs of respondent No,7 adopted the arguments of the learned counsel for the petitioner and forcefully supported his case.
5. Learned counsel for the respondent No,1 supported the judgments of the learned Courts below and made the following submissions:--
(a) that the order of rejection of an application under Order I, rule 10, C.P.C., does not amount to 'case decided', therefore, the revision petition against the same was not competent at all.
(b) that the conduct of the petitioner has never been above board and he has not approached the Court with clean hands, which is evident from the fact that he had earlier filed a suit for a decree of permanent injunction against respondent No,1 but the same was dismissed vide judgment of the learned Civil Judge Multan, passed on 28-7-1994 and such a fact was neither mentioned in his application dated 30-1-1995 moved under Order I, rule 10, C.P.C. Nor in the instant petition which was filed in October, 1995. He had also appeared as a witness in the trial Court as D:W.1 on behalf of defendants Rais and others (now respondents Nos.6 and 7-A to 7-D).
(c) that the concurrent findings of fact given by the learned Courts below to the effect that the petitioner's property is different from the suit property, cannot be assailed through a writ petition.
Reference has been made to the documents attached with the written statement filed on behalf of respondent No,
1. The following judgments have also been relied upon 1993 SCM R 618 Muhammad Yunus Khan and 12 others v. Government of N.-W.F.P. Through Secretary and others and 2000 CLC 863 (Mrs. Aziz Fatima and 3 others v. Mrs. Rehana Chughtai and 3 others).
(d) that the petitioner acquired the knowledge of the pendency of the instant suit in the year 1985 as is also evident from the contents of application moved under section 12(2), C.P.C., to which he is a party but he filed the application under Order I, rule, 10, C.P.C., on 30-1-1995 and the limitation for filing such an application is covered under Article 181 of the Limitation Act, 1908 which prescribes a period of three years. Thus, the application was patently time-barred.
(e) that the petitioner may file an independent suit for declaration of the title on the basis of his PTD and the same may be decided on its own merits, but writ petition is not competent against an order of the learned Additional District Judge passed in a revision petition. Reference has been made to PLD 1995 SC 642 (Haji Gul Payao Din v. Hamayun Saifullah Khan and 10 others).
6. I have given the due consideration to the valuable arguments of learned counsel for the parties, perused the record and gone through the judgments cited above.
7. The arguments of learned counsel for the contesting respondent No,1 to the effect that an order, rejecting an application moved under Order I, rule 10, C.P.C., does not amount to 'case decided' and revision petition against the same is not maintainable, is misconceived and the same is hereby repelled. It is now well-settled that such an order falls within the ambit of 'case decided' and the same can be assailed through a revision petition. Even otherwise such a plea was not urged before the learned revisional Court and the same would not be now allowed to be raised.
8. I have noticed that the Additional Commissioner (Revenue)/Administrator Residual Properties, Multan, Division, vide his order, dated 13-8-1985 dismissed a revision petition filed by respondent No,1 challenging P.T.D., dated 14-9-1978 issued in favour of the petitioner and it was observed that he (respondent No,1) "may challenge the transfer deed by way of a civil suit in the competent Court of civil jurisdiction." I have also noticed that Mutation No,408 dated 16-7-1981 sanctioned in favour of petitioner was cancelled by the concerned Revenue Officer and his appeal against the same was also dismissed by the Assistant Commissioner/Collector Multan, vide his order, dated 11-11-1990.
However, a revision petition filed by the petitioner against the same was allowed by setting aside these orders by the Additional Commissioner Revenue, Multan, Division, vide his order, dated 9-9- 1991 whotbserved as under:-- "The Tehsildar in his order, dated 17-2-1990 has written that the five Marlas transferred to the petitioner Muhammad Ayaz are not situated in No,Khasra 226, Mauza Sadhu Hissam and that it is number Khasra 931/1 in which the plot of petitioner Muhammad Ayaz is situated, but this discrepancy cannot damage the PTD."
' The learned counsel for respondent No,1 stated that this order had been set aside by the learned Member Board of Revenue.
' Be that as it may, I asked the learned counsel for the petitioner, following three questions:--
(i) Whether PTD issued in favour of the petitioner has been challenged by respondent No,1 through his suit;
(ii) Whether a decree (if at all) passed in the suit of the petitioner without challenging the said PTD, could annul the same; and
(iii) Whether a decree (if) passed without impleading the petitioner, would be binding upon him?
' Learned counsel though half heartedly yet replied in the negative. I wonder as to what for the petitioner is so eager to become a party to the suit in which his P.T.D. Has not been put at stake.
' I have gathered an impression that he had not moved the application under Order I, rule 10, C.PC.
In good faith. This impression also gets support from the facts that he was fully in the know of the institution of the suit which was filed on 8-10-1977, as is evident from the fact that he appeared as D.W.1 on behalf of defendants Nos.6 and 7 and also from the contents of an application under section 12(2), C.P.C. Filed in the year 1985 challenging the compromise decree, dated 14-2-1985 passed in favour of respondent No,1 and against respondent No,2 but he filed application under Order I, rule 10, C.P.C. In the year 1995. Such an inordinate delay in filing the said application brings heavy clouds to the bona fide of the petitioner particularly when it has been noticed that respondent No,1. Had already concluded his evidence and the dates were being taken by the contesting defendants/respondents Nos.6 and 7 etc. For completing their evidence and the same could not be completed because of filing of the application-in-question and now the proceedings have been stayed since 1995. I have also noticed that the petitioner had earlier filed a suit seeking a decree of permanent injunction against the present respondent No,1 but he remained unsuccessful as is evident from the judgment of the learned Civil Judge Multan, dated 28-7-1994 (copy whereof has been annexed with the written statement of respondent No,1.) and this fact was neither mentioned in his application under Order I, rule lo, c.P.0 . , dated 30-1-1995 nor in the present writ petition filed in October, 1995.
8. I also asked the learned counsel appearing on behalf of respondent No,6 and legal heirs of respondent No,7 (as he has been agitating the matter more vehemently than the learned counsel for the petitioner) as to whether the case of his clients would be prejudiced, if the petitioned is not impleaded in the array of defendants alongwith them, but no satisfactory answer wasgiven.
' I have also noticed that an amendment was allowed in the plaint of respondent No,1 to include a prayer for possession to the extent of 8-1/2 Marlas out of suit land which was allegedly taken into possession unauthorisedly during the pendency of the suit by defendants Nos.5 and 6 (now respondents Nos.6 and 7) and the petitioner did appear as their witness and claimed to be their tenant .
9. With reference to the submissions of the learned counsel for respondent No,1, in the light of the judgment PLJ 1995 SC 642 (supra) giving an opportunity to a litigant who remained unsuccessful in getting allowed his application under Order I, rule 10, C.P.C., to file an independent suit for declaration to protect his title in the context of P.T.D., I asked the learned counsel as to how he would respond to it ? He replied that he would like to have a decision on merit instead of any observation with reference thereto.
' The fact of this judgment and the present case are identical to a greater extent. In this very judgment petitioner claimed to have an interest in the suit property with reference to P.T.D., he moved an application under Order I, rule 10, C.P.C., for becoming a party to the suit filed by the other side but the same was dismissed by the learned Civil Judge and petitioner's revision petition against the same was also dismissed. High Court while dismissing the writ petition of the petitioner maintained these orders. However, suggested the petitioner to file a suit for declaration of his title independent of the observation of the Courts below. This order of the High Court was maintained by the Honourable Supreme Court.
10. It has been constantly an approved trend that a revlsional order cannot be ordinarily challenged through a Constitutional petition, particularly when no question of law is involved. The jurisdiction of this Court under Article 199 may be invoked only in very rare and exceptional cases when the revesional order appeared to be without lawful authority and jurisdiction and patently unlawful. Here in the instant case, the jurisdiction of the learned Courts below was neither questioned nor argued. Even otherwise the learned Courts below have the jurisdiction to decide the matter in issue. Here a reference with advantage can also be made to 1991 SCM R 970 (Muhammad Khan and 6 others v. Mst. Ghulam Fatime and 12 others). This judgment relates to a case arising out of an application moved under rule 17, of Order VI, C.P.C. The learned trial Court dismissed the application for amendment and revision petition against the same was also dismissed by the learned District Judge. The petitioner in the said case challenged these orders through a Constitutional petition in the High Court, which was also dismissed by observing "revisional order arising out of civil litigation could not be challenged in the writ petition." This judgment was upheld by the Honourable Supreme Court, with reference to Ghulam Hussain v. Malik Shehbaz Khan (1985 SCM R 1925), Muhammad Bakhsh v. Ghulam Hussain (1989 SCM R 443) and Muhammad Zahoor v.
Lal Muhammad (1988 SCM R 322). Even otherwise, the concurrent judgments of the learned Courts below on a question of fact are normally and generally immune from scrutiny in a petition filed under Article 199 of the Constitution.
11. It was also noticed that the learned Additional District Judge had taken a note of the omission of the petitioners in the context of filing his revision petition without complying with the requirements of section 115, C.P.C. As the necessary documents/ copies of pleadings/evidence/orders available on the file of the learned trial Court had not been annexed with the revision petition. Even now the instant writ petition also suffers from the same infirmities i,e,, copies of the written statements/written replies submitted by the contesting parties, their evidence recorded in the trial Court, were not appended.
12. The learned Additional District Judge has almost dealt with all the submissions now being urged on behalf of the petitioner as well as respondent No,6 and legal heirs of respondent No,7.
13. It is also noticed that the respondent No,1 has supported the findings of fact given by the learned Courts below through his written statement supported by a number of documents including copies of the Revenue Record and the Settlement Department to which no rejoinder was filed by the petitioner as well as respondent No,6 and legal heirs of respondent No,7.
14. Viewed from the above dimensions, I am coristrained to hold that presently the petitioner does not have a case merits to be favoured and the impugned judgments do not suffer from any jurisdictional defect. Resultantly, the instant petition fails and the same is dismissed leaving the parties to bear their own costs.