Sayed TAYAB ALI Versus Sayeda NUSRAT JAHAN

MUHAMMAD NOOR MESKANZAI, J.--- Instant revision petition is directed against the order dated 6-9-2012 passed by the Senior Civil Judge-I, Quetta whereby, the application under Order XX, Rule 12, C.P.C. filed by petitioner was rejected.

2. The brief facts relevant for the disposal of instant petition are that the respondent No.1 instituted a suit for partition, rendition of accounts and permanent injunction against the petitioner and private respondents in the Court of Senior Civil Judge-I, Quetta. It was averred in the plaint that she being a real daughter/legal heir of the late Sayed Mahboob Ali Naqvi is also entitled for the share in the assets of her late father. The petitioner and private respondents by way of filing written statement contested the suit. According to the petitioner the respondent No.1 is an adopted daughter of Sayed Mahboob Ali Naqvi, therefore, she is not entitled for the relief claimed for. During the pendency of suit, respondent No.1 filed an application under Order XX, Rule 12, C.P.C. for passing a preliminary decree to the extent of possession and msene profit. The trial Court vide order dated 6-9-2012 rejected the application filed by the respondent No.1, however, directed the petitioner to furnish surety in sum of Rs.10,00,000/- in view of Order XXXVIII, Rule 1, C.P.C. The petitioner feeling aggrieved with the order filed an application under section 151, C.P.C. for reduction of the surety amount, which was rejected by the trial Court vide order dated 22-10-2012. Hence, instant application.

3. Learned counsel for the petitioner states that the order passed by the trial Court is contrary to the norms of natural justice. It was further maintained that the lower court has failed to appreciate facts of the case in its true perspective. The impugned order is harsh and does not commensurate with the rents per annum of the disputed property. It was further stated that the relationship of respondent No.1 with the petitioner is disputed and according to the petitioner she is adopted child, besides, the application for reduction of surety was not considered in accordance with law.

4. I have considered the contentions so put forth by the learned counsel for the petitioner and have perused the case minutely. The perusal of record reveals that the respondents despite service remained absent, therefore, they were proceeded against ex parte vide order dated 21st December, 2012. The grievance of the petitioner does not appear to be plausible and justifiable for a couple of reasons. Firstly, the order impugned is an appealable as contemplated by Order XLIII, Rule 1, C.P.C. clause-(q) and since no appeal has been filed; therefore, revision is not competent. Secondly, the order dated 6th September, 2012 has been passed by the Senior Civil Judge-I, Quetta with consent of parties. For the sake of convenience the operative portion of such order is reproduced hereinbelow:---

"Thus, with the consent of learned counsel for the parties, it is for the interest of justice, let the defendant No.1 may be asked for furnishing security/surety in view of Order XXXVIII, Rule 1, C.P.C. to the extent of income earned from the rented shops on monthly basis, which calculated about Rs.10,00,000/- per year. Therefore, the defendant No.1 is directed to furnish surety of Rs.10,00,000/- on the next date of hearing."

5. Since the petitioner has consented for the passing of impugned order, therefore, he is estopped to challenge the validity of the order on the principle of estoppel contained in Article 115 of Qanun-e-Shahadat Order, 1984. Thirdly, the petitioner while filing application for reduction of surety felt satisfied with the nature of the order but remained aggrieved of the quantum of surety, whereas in the instant revision petition the petitioner has requested for setting aside of the impugned order. So, the petitioner cannot be allowed to approbate and reprobate. There is no misexercise of jurisdiction nor any illegality, irregularity, perversity or infirmity is found in the order impugned; thus, finding no merits in the petition, the same is dismissed with cost.

AG/81/Bal. Revision dismissed.