PLJ 2021 Lahore (Note) 1
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & 115--Suit for possession--Decreed--Execution proceedings--Issuance of warrant of possession for execution of decree--Filing of application against decree--Dismissed--Maintainability--Limitation--Misusing of legal provisions of law--Mala fide intention--Challenge to--Near about 11 years have been passed when applicant is misusing legal provision of law i.e. Section 12(2) of CPC for resistance of decree--Even she has not appended any document of title with application and prayer of counsel even before this Court was that matter be sent to Additional District Judge with a direction to record evidence and then to decide application u/S. 12 (2) of CPC--This prayer is also visible for prolonging litigation and nothing else--When visibly application was moved with mala fide intention to prolong litigation when her husband was party to suit in which decree for possession has been passed in favour of plaintiffs/Respondents No. 1 to 3--Therefore, application moved by petitioner u/S. 12(2) of CPC as well as instant revision petition are mala fide and as such not maintainable--Civil revision was dismissed. [Para 5] A & B
Mr. Faiz Muhammad Bilal Advocate for Petitioner.
Mr. Muhammad Aslam Chaudhry, Advocate for Respondents.
Date of hearing: 24.1.2017.
PLJ 2021 Lahore (Note) 1
Present: Amin-Ud-Din Khan, J.
versus
RAB NAWAZ etc.--Respondents
C.R. No. 3057 of 2012, heard on 24.1.2017.
Judgment
Through this civil revision the petitioner has challenged the judgment dated 13.09.2012 passed by the learned Additional District Judge, Bhakkar, whereby the application filed u/S. 12 (2) of the CPC by the petitioner was dismissed.
2. Learned counsel for the petitioner argues that an application u/S. 12 (2) of the CPC was moved by the petitioner against the judgment & decree passed by the learned Additional District Judge dated 05.05.2006 whereby the suit for possession filed by the plaintiffs/ Respondents No. 1 to 3 against the defendants-Respondents No. 4 to 6 was decreed at appellate stage, pleading the facts requiring the evidence for determination of the application but the learned Additional District Judge has decided the application without recording of evidence, therefore, states that the judgment passed by the learned Additional District Judge whereby the application u/S. 12 (2) of the CPC was dismissed, is not sustainable under the law. Relies upon “1993 S C M R 662 (Ghulam Muhammad versus M. Ahmad Khan and 6 others), 1996 CLC 1696 (Lal Khand and another versus Rehmatullah and 5 others), PLD 2006 Supreme Court 773 (Muhammad Akram Malik versus Dr. Ghulam Rabbani and others). 2002 S C M R 2003 (Muhammad Nawaz Khan versus Muhammad Khan and 2 others), 2008 SCMR 236 (Mrs. Anis Haider and others versus S. Amir Haider and others)”. Further that when the suit for possession was filed with regard to the property relating to Abadi Deh, the suit for possession was not competent. Relies upon “A.I.R. 1930 Lahore 6 (Balwant Singh and others v. Khan Bahadur and others)”. Prays for acceptance of the civil revision.
3. On the other hand, Learned counsel for the respondents while relying upon “2002 S C M R 1761 (Messrs Dadabhoy Cement Industries Ltd and 6 others versus National Development Finance Corporation, Karachi), 2001 SCMR 46 (Nazir Ahmed versus Muhammad Sharif and others), 2001 SCMR 1316 Abdul Hameed versus Mehmood and others), 1999 SCMR 1696 (Mst. Ume Kalsoom versus Zahid Bashir through Legal Heirs and another) and 2014 MLD 109 (Muhammad Ashraf versus Kashif Iqbal through Mst. Fakhar-un-Nisa and another)” argues that the decree was passed in favour of Respondents No. 4 to 6 by the learned Additional District Judge vide judgment dated 05.05.2006 and husband of the applicant was defendant/Respondent No. 3 in the suit as well as party in the appeal but the application in hand has been filed on 15.10.2011 i.e. with a delay of more than five and a half years, therefore, the application was not maintainable on the face of it and there was no need to record the evidence in the light of case law relied by him. Prays for dismissal of the instant revision petition.
4. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
5. The legal question with regard to limitation and maintainability of the application u/S. 12 (2) of the CPC is involved in the instant lis. Admittedly the husband of applicant was Defendant No. 3 in the suit and party in the appeal and a decree was passed by the learned Additional District Judge on 05.05.2006 in favour of plaintiffs/ Respondents No. 1 to 3 and the application subject matter of the instant revision petition was admittedly filed on 15.10.2011 when warrant of possession for execution of the decree was issued. It seems that to resist the execution of decree the application in hand was filed and as per learned counsel for the respondents the applicant is resisting the decree which was passed in favour of respondents/ plaintiffs on 5.5.2006 as injunctive order was issued by this Court while entertaining the application and near about 11 years have been passed when the applicant is misusing the legal provision of law i.e. Section 12(2) of the CPC for resistance of execution of the decree. Even she has not appended any document of title with the application and prayer of the learned counsel even before this Court was that the matter be sent to the learned Additional District Judge with a direction to record the evidence and then to decide the application u/S. 12(2) of the CPC. This prayer is also visible for prolonging the litigation and nothing else. The case law referred to by the learned counsel for the petitioner is absolutely not applicable to the facts of this case, therefore, not helpful for the petitioner. When the application was not maintainable at the face of it, the decision of application without recording of evidence is in accordance with the judgments of august Supreme Court of Pakistan as well as this Court relied by the learned counsel for the respondents. In this view of the matter, when visibly the application was moved with mala fide intention to prolong the litigation when her husband was party to the suit in which the decree for possession has been passed in favour of plaintiffs/Respondents No. 1 to 3. Therefore, the application moved by the petitioner u/S. 12(2) of the CPC as well as the instant revision petition are mala fide and as such not maintainable. The judgment passed by the learned Additional District Judge is in accordance with law. No exception can be taken thereto. Consequently, this civil revision stands dismissed with costs of Rs. 25,000/- (twenty five thousand).
(Y.A.) Civil Revision dismissed
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