MUHAMMAD SHAFI and others vs ABDUL HAMEED and others

' KHALIL-UR-REHMAN RAMDAY, J.--- The present petitioners had filed a suit in the year 1990 praying for a decree declaring that they were the owners in possession of the suit-land and that the registered sale-deed and the consequent mutation were fraudulent collusive and resultantly ineffective against their rights. A permanent injunction was also sought restraining the defendants from interfering with the possession or ownership of the petitioners vis-a-vis the suit-land. The suit was tried for ten long years and was finally dismissed by a learned Civil Judge at Nankana Sahib on 14-10-2000. The present petitioners impugned the said judgment and decree before the learned District Judge at Nankana Sahib on 26-10-2000 and it was after three years of the pendency of the said appeal that the petitioners woke up to realize certain deficiencies in the plaint and submitted two applications before the learned Appellate Court seeking amendment of their plaint. Through an order dated 17-4-2004 which had been passed after almost 14 years of the filing of the suit that the learned Appellate Court i.e, the learned Additional District Judge at Nankana Sahib allowed the said two applications subject to payment of Rs,1,000 as costs; permitted the petitioners to amend their plaint, permitted the respondents to then file an amended written statement; directed the learned trial Court to frame additional issues on the basis of amended pleadings and then to decide the fate of the suit afresh after recording such further evidence as may be produced.

2. The present respondents questioned this order of the learned Additional District Judge through a petition before the Lahore High Court filed under section 115, C.P.C. Which petition was allowed through an order, dated 10-2-2005 which is now being impugned before us through this petition.

3. We have heard the learned Advocate Supreme Court for the petitioners at some length and have also perused the plaint, the applications seeking amendment of the said plaint, the sale-deed in question and the judgments/orders of the above-mentioned three learned Courts.

4. Having considered all aspects of the matter, we have not been able to find any illegality in the discretion exercised by the learned Judge in Chambers and it had in fact been found and rightly so by his Lordship that the fact which was to be pleaded through the amendment in question of the plaint stood already pleaded i.e, the factum of the power of attorney being fraudulent and the intended inclusion of Khasra No,2132. It may be added that it had been admitted at the Bar that the sale-deed in question dated 30-12-1985 did contain a recital that the same was being executed by an attorney on behalf of the owners. It is, therefore, not possible for us to believe that even after five years of the execution of the said sale-deed i.e, at the time of the filing of the suit in which suit the said deed itself had been impugned, the petitioners did not know that the sale-deed had been executed by an attorney not constituted by them. Similar is the petition regarding the inclusion of Khasra No,231. Suffice it to say that the law favours only the diligent and not those who are grossly negligent and it is an additional ground on which the order in question of the learned Additional District Judge could have been struck down.

5. Consequently, we find no merit in this petition which is accordingly dismissed. Leave refused.