JUDGMENT RAJA MUHAMMAD SABIR, J. -- This petition is directed against the order of learned Additional District Judge, Lahore dated 14.9.1998 whereby he dismissed the application of petitioner under Section 12(2), C.P.C.
2. Brief facts of the case are that the respondents filed a petition under Section 6 of the West Pakistan Requisition of Immovable Property Act, 1956. The petition was contested by the petitioner but ultimately the case was decided by Trial Court in favour of the respondents on 10.6.1996.
Petitioner challenged the order in this Court in F.A.O. No. 247/1996. Judgment of the learned Additional District Judge was maintained on 22.4.1997. Petitioner filed an application (C.M. No. 1- C/1998) under Section 12(2), C.P.C, against the judgment of this Court on the ground that it was procured by respondents by practicing fraud upon this Court. High Court disagreed with the allegations made in the application, therefore, it was dismissed in limine on 6.3.1998. The relevant observations made in para 2 of the order reads as under:- "These averments, even if taken to be true, do not prima facie constitute any fraudulent act on the part of the respondents so as to warrant reversal/recall of the impugned judgment.
It is not denied that the applicant had been paying rent to the opposite party since, 1977. The question of lack of ownership was not raised before the learned District Judge nor during the hearing of the FAO before this Court, it cannot be permitted to be so raised in these proceedings.
The applicant has already assailed the impugned judgment before Supreme Court of Pakistan through a petition for special leave to appeal which is reported to be still pending.
It is wholly misconceived and frivolous application and the same is dismissed in limine."
3. The petitioner after dismissal of the aforesaid application again applied under Section 12(2), C.P.C, to the learned Additional District Judge for setting aside the decree dated 10.6.1996 and also the judgment and the decree passed by this Court on 30.4.1 997 contending that the same are procured through fraud and misrepresentation. Learned Additional District Judge vide order dated 14.9.1998 dismissed the application hence the present revision.
4. Learned counsel for the petitioner contends that if the respondents produce deed of title or any other document showing their ownership petitioner will have no objection to make the payment in accordance to the award. He further contends that respondents failed to prove their title on the suit property and the factum of ownership of respondents was not taken into consideration during previous litigation. The aforesaid order was procured through misrepresentation, therefore, petition under Section 12(2), C.P.C, was maintainable before the learned Additional District Judge in view of law laid down in Lai Din and another v. Muhammad Ibrahim (1993 PSC 610).
5. Mian Israr-ul-Haq learned counsel for the respondents submitted that the ownership of the respondents was not disputed by the petitioner in its written statement held before the Trial Court and referred para 1 of the written statement whereby the contends of para 1 of the plaint were admitted. He further submitted that second application under Section 12(2), C.P.C, was not maintainable and the petitioner instead of .Assailing the order of this Court in the Supreme Court erroneously filed the application before the learned Additional District Judge. Learned Additional District Judge was not competent to recall the order of the High Court, therefore, this petition is' absolutely frivolous and be dismissed with special costs.
6. I have heard the learned counsel for the parties at length and perused the relevant record, In para 1 of the plaint respondents stated that the property No. SXXXVII-9-S-22 situated in Grumangat Gulberg-III, Lahore is owned by the petitioners therein, was requisitioned on 24.5.1977 by the Government of Punjab. At the time of requisitioning the property it was occupied by Zafar-ul-Islami Primary School, Gulberg, Lahore which had been finally taken over by the Government under Martial Law Regulation No. 118 in 1972. The said school was being controlled and managed by the Government at the time of requisitioning and at present the petitioner is utilizing the property for running the Government Zafar-ul-Islami Primary School, Gulberg, Lahore. Petitioner in reply to aforesaid para admitted para 1 as correct, In view of the clear admission on the part of the petitioners about the ownership of the respondents of the taken over property it cannot be said at this stage that they do not have any title of the suit property. At the same time petitioners have not alleged anywhere that this property belongs to any one else or the compensation was demanded by any third party. These facts clearly indicate that the respondents are owners of the property and the objection of the petitioner about their ownership cannot be entertained.
7. F.A.O, filed by the petitioners was dismissed on 30.4.1997. Petitioners challenged the order in the Supreme Court through C.P. No. 1414-L/1997 which was dismissed as barred by time on 31.7.1998.
After dismissal of the petition for leave to appeal the order of this Court has merged into the order of the Supreme Court.
8. Petitioner also challenged the order passed in F.A.O, through C.M. No. 1-C/1998 a petition under Section 12(2), C.P.C. Said application was dismissed on merit in limine on 6.3.1998. Petitioner made a futile exercise by filing another application under Section 12(2), C.P.C, before the learned Additional District Judge which too was dismissed through impugned judgment. The ground of fraud and misrepresentation was never alleged before the Trial Court or in this Court in the F.A.O. The petition under Section 12(2), C.P.C, was considered at length and dismissed on merit, it is not understandable under whose advice petitioner submitted an application under Section 12(2), C.P.C, before the learned Additional District Judge for recalling the order of this Court who was not competent at all to recall or reverse the order of High Court. Petitioner at the most could assail the order in the Supreme Court. The procedure adopted by the petitioner is unknown to the Civil Procedure Code. Learned Additional District Judge was not competent at all to entertain application under Section 12(2), C.P.C, after its dismissal by the High Court on merit on- same grounds. The impugned judgment is based on. Correct assumption of law.
9. Case of Lai Din referred by the learned counsel for the petitioner is not attracted to the facts of present case at all. The ratio of the aforesaid judgment is that Tribunal of special or limited jurisdiction is competent to recall its order if it is established that the fraud had been practiced upon it. Here in the instant case fraud was not alleged in the written statement or in the grounds of appeal. High Court considered the allegations of the petitioner and dismissed the application on 6.3.1 998," Fresh petition under the same provision of law and on the same grounds was not maintainable before a lower forum. Previous judgment of the High Court has been upheld by the Supreme Court and the dispute between the parties has finally been adjudicated upon. Fresh petition under Section 12(2), C.P.C, before Additional District Judge was not maintainable at all.
Such a petition is also hit by Section 11 of the C.P.C. The impugned judgment is perfectly in accordance with law and warrants no interference. The petition has no merit and is dismissed with costs.