 |
| Shamlat deh adna malik , aala malik , |
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| Shamlat deh ,full owner, inferior owner,adna malik, ala malik. |
Yeh judgement detail judgement of shamlat deh jis main bataya gia hai ke kese Full owner banta hai or kin banyadu per adna malik ban sakta hai.
Yeh judgement iss point ki bhi tafseel batati hai. Ke ju case aik bar faisla hu jai wo dubara file nahi hu sakta
Bht interested judgement adna malik or ala malik ke darmian.
Yeh bhi bataya gia hai ke adna malik kin banyadu per ban sakta hai.
Brief story
Adna malkan ne ala malkan ke khalaf case file kia ke wo mazi main ala malkan ban chuke hain.
Magar evidence main wo apna case sabat na kar sake or High Court ne revision kharaj kar dien. Magar iss judgement main bht sari dosri judgements discuss hoin or iss ke sath sath laws bhi discuss hoe
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judgement
Stereo. H C J D A 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
JUDGMENT
C.R.No.112/2014
Muhammad Naseem etc.
VS.
Province of Punjab through
Collector, District Bhakkar etc.
Ch. Muhammad Iqbal, J:-
Through this single
judgment, I intend to decide the titled Civil Revision as well as
Civil Revision No.113/2014 as both these cases have arisen out
of the same judgments & decrees.
2.
Through these civil revisions, the petitioners have
challenged the validity of the judgment & decree dated
24.09.2010 passed by the learned Civil Judge, Bhakkar who
dismissed the suit for declaration and permanent injunction filed
by the petitioners and also assailed the consolidated judgment &
decree dated 26.09.2013 whereby the learned Additional District
Judge, Bhakkar dismissed the appeals of the petitioners.
3.
Brief facts of the case are that the petitioners/plaintiffs
filed a suit for declaration alongwith permanent injunction
against the respondents/defendants and contended that land
measuring 78000 Kanal bearing Khata Nos.96 to 634 situated in
Moza Darboola Tehsil Mankera District Bhakkar is Shamlat Deh.
C.R.No.112/2014
2
That previously the suit land was bearing Khata Nos.1 to 41
comprising of total land measuring 100200 Kanal out of which
26000 Kanal have become
Adna Malkiat. The
petitioners/plaintiffs and their predecessors are owners and
residents of Moza Darboola. They have reclaimed the suit land on
the basis of breaking up (نوتوڑ) as well as sinking of wells. The
petitioners/plaintiffs have contended that they are the inferior
proprietors (Adna Malkan) and are in possession of the suit land
since 1923-24; that after promulgation of MLR No.64 the inferior
proprietors (Adna Malkan) who were in possession of any
Shamlate land, were declared as full owners of the said land. That
by operation of above regulation, the petitioners who were
inferior owners became full owners of the land. However, in this
regard, they filed claim before the Collector, Bhakkar who vide
order 29.05.1982 declared that the petitioners/plaintiffs are in
possession of the suit land and accordingly mutation Nos.26 to 56
were passed. The respondents/defendants being alleged superior
owners [Aala Malkan] of the land challenged the said order
through an appeal which was accepted by the Commissioner,
Sargodha Division, Sargodha on 28.02.1983 and the order dated
29.05.1982 was set aside. The petitioners assailed the order dated
28.02.1983 before the Member, Board of Revenue through
revision petitions which were accepted in the terms that the
orders of the both the lower fora were set aside, the previous
entries in the revenue record were maintained and the petitioners
were advised to approach the Civil Court for redressal of their
grievance. The petitioners/plaintiffs assailed the said orders
through Writ Petitions [No.3034 & 3035 of 1986] which were
dismissed by this Court on 27.07.1999.
Thereafter, the petitioners/plaintiffs No.1 to 5 on their
own as well as being representatives of petitioners/plaintiffs No.6
to 1730 filed a suit. The respondents/defendants filed separate
C.R.No.112/2014
3
contesting written statements. As per divergent pleadings of the
respective parties following issues were framed:-
1. Whether the plaintiffs are owner in possession of the suit land as
Adna owners and the defendants have no concern whatsoever
with the suit land? OPP
2. Whether the order of Commissioner, Sargodha dated
28.02.1983 is false illegal and liable to be cancelled? OPP.
3. Whether the plaintiffs have got no cause of action? OPD.
4. Whether the plaintiffs have not come to the court with clean
hands? OPD.
5. Whether the suit is barred by law of limitation ? OPD
6. Whether this court has got no jurisdiction to entertain this suit?
OPD
7. Whether the suit is fictitious and based on concocted story and
the plaintiffs are in illegal possession of the suit land therefore,
the defendants are entitled to the recovery of Rs.1 Karor as
special cost u/s 35-A of CPC? OPD.
8. Whether the plaintiffs are estopped by their words and conduct
to file this suit? OPD.
9. Whether the defendants No.12 to 17 are entitled to the land
mentioned in para 4 of preliminary objections on the basis of
the decree therefore, the suit is liable to be dismissed? OPD-12
to 17
10. Whether Mst. Waziran widow of Khuda Bukhsh is necessary
party, who has not been joined as party therefore, the suit is
liable to be dismissed? OPD-12 to 17
11. Whether the defendants Naheed Akhter & Muhammad Shakeel
are minors who have been impleaded by next friend therefore
the suit is liable to be dismissed? OPD-12 to 17
12. Whether the suit is barred by principle of resjudicata? OPD-18
to 27 & 31 to 49.
13. Whether the suit is hit u/s 56-D of Specific Relief Act? OPD.
14. Whether the description of the suit land is not correct, therefore,
the suit is liable to be dismissed? OPD.
15. Relief.
The parties at discord led their respective pro and contra
evidence. The learned trial court finally dismissed the suit of the
petitioners/plaintiffs vide judgment & decree dated 24.09.2010.
Being dejected, the petitioners/plaintiffs assailed the said
judgment & decree through two separate appeals which were
dismissed by the learned appellate Court through consolidated
judgment & decree dated 26.09.2013. Hence, these civil
revisions.
C.R.No.112/2014
4
4.
I have heard the arguments of learned counsels for the
parties and have gone through the record with their able
assistance.
5.
In order to prove the assertions made in the plaint as well
as to prove issue No.1, plaintiffs produced Munir Hussain
(P.W.1) who deposed that the plaintiffs are in possession of the
suit land prior to 1923-1924; that the suit land is Shamlat and
they are holding the land as inferior owner (adna maalik); that
they installed tube-wells, planted trees and constructed houses on
the suit land; that they used to pay Revenue fee (maalia) and
other taxes etc.; that in 1958 Martial Law Regulation was
promulgated and the Collector passed order declaring them as
inferior owner (Adna Maalik) in the year 1982 and accordingly
mutations were sanctioned; that against the said order the
defendants filed an appeal which was accepted; that the
petitioners filed petition before the Board of Revenue who
advised them to approach Civil Court for redressal of the
grievance; that they challenged the said order before the High Court
but the order of Board of Revenue remained upheld. During cross
examination, he deposed that:
"ریما ومرث اٰیلع اگام اھت ینعی رپدادا اھت۔ ۔۔ ہی درتس ےہ ہک اگام ےک انل رپ وکیئ ونکاں ہن ےہ۔۔۔
ریمی رمع33اسك ےہ۔ ہی درتس ےہ ہک ریمی دیپاشئ 8958ےک دعب یک ےہ۔ اٰیلع اماکلم یک
ومعض ںیم تیکلم ہن ےہ۔ 8959ںیم امہرا انل ررٹسج دقحارام ںیم وطبر رشع اماکلم درج ےہ۔ ۔۔
ےھجم ملع ہن ےہ ہک 8966ںیممہےنوکیئدوع ٰیرئنیسوسكججاصبحایمونایلایکاھت۔ےھجماس
ابرے ملع ہن ےہ ہک اس دوعٰی ںیم ہی ایبم ذبرہعی وکلسن دای اھت ہک ڈنیل نشیمک واےل رہبق ےس امہرا
وکیئقلعتہنےہ۔ےھجمملعہنےہہکدوع ٰیاسملاخرجوہایگاھت۔ےھجمملعہنےہہکڈرٹسٹکجج
ایمونایل ےن امہری الیپ اخرج رک دی یھت۔ ےھجم ملع ہن ےہ ہک رٹسم سٹسج زادہ نیسح ےن امہری
الیپ اخرج رک دی یھت۔ ہی درتس ےہ ہک ڈنیل نشیمک ےن رہبق دتموعہی وصحك ایک اھت۔ ےھجم اس ابت
اک ملع ہن ےہ ہک ڈنیل نشیمک ےن وصحك دشہ رہبق فلتخم ولوگں وک ومشبك دماع مہیلع وک الینل رک دای اھت۔
ےھجم ملع ہن ےہ ہک یراداروں ےس ڈنیل نشیمک ےن 8/4ہصح رمق یھب ووصك رک یل یھت۔ امرلش ال ء
روگینشیل 8958ںیم اجری وہا اھت۔ وننشیکیفیٹ ےک اطمقب ہی ہن اھکل وہا اھت ہک ادین اماکلم وک وقحق
دےد ئےیاجںیئ۔لک رہبق دعتادی رقتًابی 868111انکكےہ۔ریماانلدوع ٰیںیموطبردمیع
اشلم ےہ۔ ہی درتس ےہ ہک روربو رنشمک مہ ےن اانپ ومفق ایبم ایک اور رنشمک ےن امہرے ومفق وک
C.R.No.112/2014
5
ےننس ےک دعب ہلصیف امہرے الخف رک دای اھت۔ وبرڈ آف رویوین ںیم مہ ےن الیپ افلئ یک یھت۔ وبرڈ اک
ہلصیف 1771778996 وہا اھت۔ وبرڈ آف رویوین ےک ہلصیف ےک الخف دعاتل اعہیل ےن
2771778999وک ہلصیف ایک اھت۔ ۔۔ درتس ےہ مہ ےن اہوکیئرٹ ںیم رٹ دارئ یک یھت وت اس ںیم ہی
ہن اھکل اھت ہک لبق ازںی روگیرل الیپ دعاتل اعہیل ںیم زری امستع ےہ۔۔۔ہی درتس ےہ ہک رنشمک ےک
ہلصیف ےک الخف مہ ےن )ادین اماکلم( ےن وبرڈ آف رویوین ںیم الیپ یک یھت۔ اوہنں ےن الیپوظنمر
رک یل یھت۔ مہ ےن وسك وکرٹ ںیم دوعی اس ےئل دارئ ایک ہک رٹکلک اک مکح احبك ایک اجوے۔۔۔رسخہ
ےک رمہل3 انکك635 ارایضدقبر369 ،375 ات373 ،372 ،367 ،377 ،376 ،378 ربمنام
ابرے ںیم ہی ںیہن التب اتکس ہک اس ارایض ےک ابرے انتزہع نک نک ےک امنیب ےہ۔ ۔۔ ہی درتس
ےہ ہک وبرڈ آف رویوین ےن SO اوررنشمکےکےلصیفارایضدتموعہییکابتبوسنمخرکد ئےی
ےھت۔۔۔ ہی درتس ےہ ہک وبرڈ آف رویوین ےک ےلصیف ےک الخف دمایعم رفقی ہلصیف ےن رٹ یک
یھت۔ اھیئ وکرٹ ےن (BOR)ےک ہلصیف وک احبك راھک۔"
Haji Mukhtar Hussain (P.W.2) deposed during his cross
examination that:
"ےھجم ملع ہن ےہ ہک ونکاں سک ےک انل ےہ۔۔۔ ےھجم 35اسك ےس لبق ےک ابرے ںیم ملع ہن ےہ ہک
وگرٹنمن ےن وکیئ رہبق وصحك ایک اھت ای ںیہن۔ ۔۔ےھجم ملع ہن ےہ ہک دمایعم ےن سک ابرے ںیم
دوع ٰیایکےہاہتبلدمایعموکملعوہاگ۔۔۔ادٰین اماکلم ویہ ںیہ وج ومعق رپ اقضب ںیہ۔۔۔ ےھجم یسک
ابت اک ملع ہن ےہ اماکلم اجےتن ںیہ ہک ںیم رصف ہضبق یک وگایہ داتی وہں۔ تیکلم اک ےھجم ملع ہن ےہ،
اماکلم وک اتپ وہ اگ۔"
Malik Falak Sher (P.W.3) deposed during cross examination that:
ارایض دتموعہی اشالمت دہہی ےہ۔ اس ےئل ہی امکل اقضب ںیہ۔ ےھجم ملع ہن ےہ ہک ادین اماکلم ایک
وہےت ںیہ۔ ےھجم ہی ملع ہن ےہ ہک اٰیلع اماکلم ایک وہےت ںیہ۔ ےھجم ملع ہن ےہ ہک ارایض دتموعہی رپ
دمایعم ےن سک یک ااجزت ےس ہضبق ایک اھت۔۔۔ ےھجم اشالمت ےک ابرے ملع ہن ےہ، اہلل رتہب اجاتن
ےہ۔۔۔ےھجم ملع ہن ےہ ہک اس ومعض ںیم وکم ےنتک رہبق رپ اقضب ےہ۔ ےھجم اس ابرے یھب ملع ہن
ےہ ہک دمایعم ےنتک رہبق رپ اقضب ںیہ۔ےھجم ملع ہن ےہ ہک دمایعم سک تیثیح ےس اقضب ںیہ۔"
6.
Conversely, Tufail Ahmad, Patwari Moza Darbola has
appeared as D.W.1, who deposed that the Moza Darbola is
consisted of land measuring 16119 Kanal; that after promulgation
of MLR 1966, 1972, 1977 the superior owners (aala malkan) of
the Moza Darbola surrendered the land and land measuring 1474
acre (117920 Kanal) was resumed in favour of the State by the
Land Commission; that the cases of the Moza Darbola were
C.R.No.112/2014
6
pending in different Courts; that the District Collector, Bhakkar
vide order dated 29.05.1982 passed order for the disbursement of
land measuring 11952 Acre of Aala Malkan in favour of inferior
owners (Adna Malkan) and in the year 2005-06 the rest of the
area measuring 37098 Kanal was transferred in favour of
Provincial Government through Land Commission; that the
plaintiffs are illegal occupants due to which penalty (tawan) is
required to be recovered from them. During cross examination,
he stated that mutation No.24 dated 03.06.1982 was sanctioned in
favour of defendants but the said mutation was cancelled by the
order of Commissioner; that the said order was upheld by the
Board of Revenue as well as High Court. Muhammad Afzal
(D.W.2), one of the respondents/defendants has deposed that they
purchased land measuring 635 Kanal 03 Marla from Madah
Hussain s/o Bahadur and the plaintiffs have no concern with the
said land.
7.
Admittedly, the suit land is Shamlat and the
petitioners/plaintiffs & proforma respondents have claimed to be
the inferior owner (adna maalikan) on the basis of breaking up
(نوتوڑ) as well as sinking of wells but the rights of inferior
ownership (adna malikan) were abolished, after the promulgation
of MLR 1964. In Para 3 of Martial Law Regulation 1964, it is
provided that any rule or order made therein, shall have effect
notwithstanding anything contrary in any other law. For ready
reference, Para 3 ibid is reproduced as under:
“3. Regulation to override other laws, etc. The provisions of the
Regulation, any rule or order made thereunder, shall have affect
notwithstanding anything to the contrary in any other law, or in any
order or decree of Court or other authority, or in any rule or custom
or usage, or in any contract, instrument, deed or other document.
C.R.No.112/2014
7
Under Para 22 ibid, superior ownership (Aala Malkiat) and other
similar interests stood abolished. For reference, Para 22 ibid is
reproduced as under:
“22. Intermediary interests. Ala-Milkiat and similar other interests
subsisting immediately before the commencement of this
Regulation, shall on such commencement, stand abolished and no
compensation shall be claimed by, or paid, person affected by the
abolition.”
The petitioners/plaintiffs merely have claimed that they have
broken up the land and have dug wells but in this regard they
have not produced any evidence. Further, they also did not
produce any evidence that the superior owners (aala maalikan)
gave permission to the petitioners/plaintiffs for taking possession
of the land. It is an essential pre-requisite for the inferior
ownership (adna maalikan) that they shall approach the superior
owners (aala maalikan) and offer them share of produce
(nazrana / jhaar) and take permission but there is no favourable
evidence in this regard. The Hon'ble Supreme Court of Pakistan
in a judgment titled as Khanan and 2 others Vs. Fateh Sher
through Ahmad and 15 others (1993 SCMR 1578) has held that
inferior owners (adna maalikan) should approach superior
owners (aala maalikan) and offer them share of produce
(nazrana / jhaar) and take permission and if such permission is
granted, they (adna maalikan) could remain in possession. The
petitioners/plaintiffs failed to prove the pre-requisite of inferior
ownership (adna maalikeat) through any credible evidence. The
petitioners/ plaintiffs have not fulfilled the criteria prior to the
promulgation of MLR 1964.
8.
The Sindh Sagar Doab Colonization Act 1902 was
repealed in 1929 and in the intervening period whereof, no
proprietary rights of Shamlat were land granting in favour of any
person. Munir Hussain (P.W.1) stated that they installed wells at
the suit land but in this regard no solid, credible & corroboratory
C.R.No.112/2014
8
oral or documentary evidence was produced. As per the revenue
record from 1943-1944 to 2005-2006, the nature of the suit land
has been mentioned as barani, banjar qadeem and banjar jaded
which proves that the suit land was never cultivated by the
petitioners/plaintiffs nor they did any labour for the purpose of
breaking up of the land to make it cultivable. This fact is
mentioned in wajib-ul-arz of Moza Darbola (Exh.P.12). In a
judgment cited as Ghulam Haider Vs. Ghulam Raza Shah and 12
others (PLD 1979 Lahore 481) it has been held that no person
can claim right of inferior ownership (adna malkiyat) by breaking
barren (barani) land. Further, mere the cultivation is not a sole
criterion / reason to confer proprietary rights on the basis of entry in
the column No.6 of Jamabandi as “توڑ نو بوجہ مالکان باشرع قبضہ” as it
neither creates any right of ownership in favour of the petitioners/
plaintiffs nor declares them as inferior owner (adna maalikan).
9.
As regard the claim of the petitioners/plaintiffs that they
are in possession of the suit land since their forefathers for a long
long time ago, as such they become owners of the land on the
basis of adverse possession as well; suffice it to say in this regard
that the Hon‟ble Supreme Court of Pakistan in a landmark
judgment reported as Maqbool Ahmed Vs. Government of
Pakistan (1991 SCMR 2063), has already declared Section 28 of
the Limitation Act, 1908 against the injunctions of Islam by
holding that claim of adverse possession is repugnant to the
injunctions of Islam. Thus, the above assertion of the petitioner/
plaintiff is devoid of any force.
10.
As regard the issue No.12 is concerned it is worth
mentioning that as per available record, a lis having the same
cause regarding the suit land among the same parties was earlier
dismissed by the learned Civil Judge vide judgment & decree
dated 13.11.1967 and appeal whereof was also dismissed by the
C.R.No.112/2014
9
learned District Judge, Mianwali on 13.05.1968. For reference,
the operative portion of the judgment dated 13.05.1968 and the
claim made by the petitioners/plaintiffs in the instant suit are
reproduced as under:
“Ali Muhammad and three others instituted the suit in the
representative capacity under Order 1 rule 8 C.P.C., against
Shamsher and 45 others, including the Land Commission and others
entered in list „B‟ attached with the plaint for perpetual injunction
seeking to restrain the defendants form making alterations or change
by way of mutation or by any other means of ownership rights in
respect of land measuring 156572 kanals 1 marla, situated in the
area of village Darbula, Tehsil Bhakkar, as entered in the Jamabandi
of the year 1963-64 and described in the heading of the plaint in
detail. The plaintiffs also prayed for restraining the defendants from
removing the entry of Shamilat-deh as incorporated in column No.5
of the said Jamabandi. The plaintiffs claimed that they and their
forefathers alongwith those entered in list „Alif‟ were in cultivating
possession of the suit land since time immemorial. The first regular
Settlement had taken place in the year 1878 and according to the
terms of Wajib-ul-arz prepared in that Settlement the person who
had brought the barren land under cultivation were considered as
malikan Adna while the owners of the land were termed as Malikan
Ala. In order to get the rights of Adna Malkiyat the plaintiffs and
their fore-fathers had complied with the conditions necessary for it
as laid down in the said Wajib-ul-arz.”
After having lost the cause up to this Court, the petitioners/
plaintiffs again instituted the instant suit, wherein they have
sought a similar declaration which is as under:
"دوع ٰیارقتسارہیدبںیومضممہکرقاردایاجوےہکامدمایعماماکلمواقاضبموطبرادٰیناماکلم
ارایض دنمرہج اھکہت ربمن 96ات 634ربمنام رسخہ اسمل اھکہت اجت رہبق دعتادی 811211انکك
ںیم ےس رہبق دتموعہی 78111انکك واہعقومعضدروباللیصحتمنکیئرہعلضرکھبےکںیہاور دماع
مہیلع اک اس ےس وکیئ قلعت واہطس ہن ےہ اور مکح رنشمک اصبح رسوگداھ رسا رس طلغ الخف اقونم اور
اقلب وسنمیخ ےہ۔ و زین ادصار مکح اانتمیع دوایم انبل دماع مہیلع ہک وہ ہضبق و اکتش ام دمایعم ںیم لخم
و زماح اور ہن یہ درگی ہگج ارایض دتموعہی لقتنم رکںی۔"
As per record, in the earlier round of litigation, the Regular
Second Appeal [No.586/1968] filed by the petitioners/plaintiffs
was dismissed on 10.03.2000. The petitioners/plaintiffs did not
challenge the aforesaid judgments & decrees any further, as such
same have attained the status of finality and have become past
and closed transaction. Reliance is placed on Pakistan
C.R.No.112/2014
10
International Airlines Corporation Vs. Aziz ur Rehman
Chaudhary and another (2016 SCMR 14). The earlier lis of the
same suit land among the same parties had already been decided
upto this Court, as such the subsequent suit on the same issue or
cause of action is not maintainable under Section 11 of CPC,
which provision envisages that no Court shall try a suit or issue in
which the matter directly or substantially in issue has already
been decided in former suit between the same parties or between
the parties under whom they or anyone of them remained
litigating against same title which issue has earlier been raised
and has finally been heard and decided by Court of competent
jurisdiction. For ready reference, Section 11 C.P.C is reproduced
as under:
“Res Judicata. No Court shall try any suit or issue in which
the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Explanation I.__The expression "former suit" shall denote a
suit which has been decided prior to the suit in question whether or
not it was instituted prior thereto.
Explanation II.__For the purposes of this section, the
competence of a Court shall be determined irrespective of any
provisions as to right of appeal from the decision of such Court.
Explanation III.__The matter above referred to must in the
former suit have been alleged by one party and either denied or
admitted, expressly or impliedly, by the other.
Explanation IV.__ Any matter which might and ought to have
been made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in
such suit.
Explanation V.__ Any relief claimed in the plaint, which is
not expressly granted by the decree, shall, for the purposes of this
section, be deemed to have been refused.
Explanation VI.__ Where persons litigate bona fide in respect
of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right shall, for
the purposes of this section, be deemed to claim under the person
C.R.No.112/2014
11
The object of the principle of res-judicata is to make end of the lis
and also to prevent multiplicity of litigation. That once a matter is
decided finally between the parties to suit or proceedings then
none from the said litigating parties could be allowed to re-agitate
the matter in a subsequent suit or proceedings. The Hon‟ble
Supreme Court of Pakistan in a case titled as Muhammad
Chiragh-ud-Din Bhatti Vs The Province of West Pakistan (Now
Province of Punjab) Through Collector, Bahawalpur & 2 Others
(1971 SCMR 447) held as under:-
“Even if section 11 of the Civil Procedure Code may not
in terms apply in support of the plea of res judicata, it
can hardly be disputed that the general principles of res
judicata were clearly attracted to debar the petitioner
from re-agitating the matter afresh by a civil suit, which
had been put at rest by a judgment of the High Court
passed in writ jurisdiction. The civil Court could not
have by-passed or overridden the orders of the High
Court competently made in another jurisdiction on the
same subject between the same parties.”
In a case cited as Muhammad Akhtar etc. Vs. Abdul Hadi etc.
(1981 SCMR 878), the Hon'ble Supreme Court of Pakistan held
as under:
“It is obvious that after the aforesaid adjudication by
this Court, a fresh suit to reagitate the same matter
could not have been filed by the respondent which was
nothing but an abuse of the process of law. Moreover in
sub-section (2) of section 12 of the C.P.C (1908) it is
laid down that “where a person challenges the validity,
of a judgment, decree or order on the plea of fraud,
misrepresentation or want of jurisdiction, he shall seek
his remedy by making an application to the Court which
passed the final judgment, decree or order and not by a
separate suit.” The aforesaid provision was apparently
not brought to the notice of the High Court. The result is
that we convert this petition into an appeal and
accepting the same, set aside the order of the High
Court and maintain the orders of the Courts below
thereto whereby the plaint had been rejected and suit
was dismissed in that form. Parties to bear their own
C.R.No.112/2014
12
Same view has been reiterated in cases reported as Muhammad
Saleem and others Vs. Rashid Ahmed and others (2004 SCMR
1144), Messrs Gadoon Textile Mills Ltd. and others Vs.
Chairman Area Electricity Board, WAPDA (PESCO), Peshawar
and others (PLD 2005 SC 430), SME Bank Limited through
President Islamabad and others Vs. Izhar ul Haq (2019 SCMR
939), Chief Commissioner Inland Tax through RTO Zone-I,
Federal Board of Revenue, Hyderabad and others Vs. Ghulam
Mustafa Mari, Ex-Inspector, Income Tax, Revenue Division,
FBR, Hyderabad (2019 SCMR 1657) and Muhammad Afzal
Khan Vs. Muhammad Aslam (deceased) through LRs. (2022
SCMR 1275).
In view of above, the learned Courts below erred in law as
well as committed misreading and non-reading of evidence while
rendering the findings on issue No.12, as such the same are
hereby reversed and this issue is decided in favour of the
respondents/defendants.
11.
Resultantly, both these civil revisions are hereby
dismissed with no order as to costs.
(Ch. Muhammad Iqbal)
Judge
Announced in open Court on 02.03.2023.
Approved for reporting.
Judge
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