PIO KHAN vs SAR ANJAM KHAN and another

ORDER

ABDUL HAMEED DOGAR, J.---Appellant Pio Khan filed the titled civil miscellaneous appeal against the order of the Registrar of this Court dated 5-1-2000 passed in Civil Miscellaneous Application No, Nil of 1999 filed by him under section 12(2), C.P.C. Read with Order XXXIII, rule 6 of Pakistan Supreme Court Rules which was returned in original being not maintainable under the rules with the following objections: "(i) The applicant was neither party in the proceedings up to Supreme Court.

(ii) This application is hit by Order I, rule 5 of Supreme Court Rules, 1980 as C.P.C., 1908 does not apply in the Supreme Court proceedings.

(iii) This application is hit by Order X, rule 3 and Order XXVI, Rule 9 of Supreme Court Rules, 1980."

2. This appellant/applicant feeling dissatisfied with the order of the Registrar has filed the instant appeal.

3. Sardar Muhammad Ghazi, learned counsel for the appellant has contended that the order under appeal is based on erroneous assumption of law and, therefore, liable to be overruled and the application under section 12(2), C.P.C. Is maintainable before this Court in view of the dictum passed by this Court in the case of Kh. Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCM R 1516. According to him, the appellant, in fact, is the real owner of the property and he was not made a party in the proceedings up to this Court, as such, the application filed by the appellant under section 12(2), C.P.C. Is the only remedy available in view of the above judgment. He contended that in the fact the respondent committed fraud by not making the appellant party, in this case. He argued that the office did not apply the judicious mind while dealing with the application.

4. This case has chequered history. It is not all of a sudden that the matter has reached up to this Court but it was on 7-10-1990 Sar Anjam Khan respondent No,1 brought a pre-emption suit in respect of suit-land against respondent No: 2 Abdul Raziq which was decreed on 27-2-1994. Appeal filed by Abdul Raziq was dismissed by learned District Judge, Karak. Vide judgment dated 6-10- 1994. Concurrent findings recorded by the two Courts below were challenged in Civil Revision No,739 of 1994 before learned Peshawar High Court, Peshawar, which was accepted by order dated 18-9-1995 and the suit filed by pre-emptor Sar Anjam Khan was dismissed. He assailed the said judgment in this Court through Civil Appeal No,44 of 1997 which was disposed of along with Civil Appeals Nos.573 and 574 of 1997 through a common judgment. Appeal of Sar Anjam Khan was accepted and judgment of trial Court was restored. Civil review petition filed against the judgment was also dismissed by this Court on 30-4-1998.

5. The claim of appellant Pio Khan that he was the owner of the suit-land and had let out the same to respondent No,2 Abdul Raziq as tenant in the year 1988 is without any substance. The contention of the -appellant that Mutation No,402 dated 12-10-1989 is in fact a fictitious and fraudulent document managed/manoeuvred by respondent No,2 Abdul Raziq in connivance with the Revenue Authorities is too not acceptable on the face of it as it was entered into in 1989 and was never challenged before any competent forum at all and thus attained finality. The purpose behind filing of the instant application at this belated stage is to frustrate the entire verdicts rendered with regard to the suit-land which in any case is not justified and cannot be encouraged to start a new round of litigation.

6. Accordingly we do not find any justification to interfere with the impugned order which is maintained. The appeal being devoid of C course is dismissed with no other order as to costs.