Syed MUSHTAQ HUSSAIN SHAH Versus MEHANGA
ORDER
C.M. No.4029/2015
AMIN-UD-DIN KHAN, J.--- This C.M. is pending adjudication before this Court. On the last date of hearing, this C.M. as well as C.M. No.455/2013 and record of the main writ petition was scrutinized in presence of learned counsel for the parties while hearing arguments on this application therefore learned counsel for the parties were directed to come prepared on the main writ petition as well as C.M. Nos.137 and 455 of 2013.
2. Office is directed to fix C.M. Nos.137 and 455 of 2013 along with this application for hearing today.
C.M. Nos.137, 455 of 2013 and 4029/2015
3. Brief facts of the case are that writ petition was dismissed on 23.02.2011 for non-compliance of order dated 22.10.2010 passed by this Court. The legal heirs of the petitioner namely Farhat Abbas and Khalid Farooq moved C.M. No.137/2013 under section 12(2), C.P.C. for setting aside order dated 23.02.2011 and C.M. No.455/2013 was filed for suspension of the judgments impugned in the main writ petition dated 29.11.1997 and 03.07.2001 of the learned courts below. As the writ petition was filed fifteen years ago and due to the negligence and contumacious act of the petitioner and his legal heirs, the writ petition was dismissed for non-compliance of order of this Court. Thereafter, an application under section 12(2), C.P.C. and the application for suspension of the judgments impugnened in the writ petition have been filed but inadvertently on 01.04.2015, order was passed for dismissal of the writ petition whereas the said CMs. were pending therefore C.M.No.4029/2015 was moved.
4. To avoid all the formalities and with the concurrence of learned counsel for respondents, C.M. Nos.137/2013 and 4029/2015 are allowed and the main writ petition is restored to its original number.
5. With the concurrence of learned counsel for parties, office to fix the main writ petition for hearing today.
Main Case
6. Learned counsel for the petitioner states that instant writ petition has been filed against the consolidated judgment dated 29.1.1997 and separate decree dated 03.02.2001 whereby revision petition filed by the petitioner against the dismissal of his suit filed under section 9 of the Specific Relief Act, 1877 was dismissed and vide same consolidated judgment, the appeal of the petitioner against the judgment and decree passed in a suit for specific performance filed by respondent No.1 was also dismissed. The consolidated judgment of the learned trial Court is dated 29.11.1997 whereby suit filed under section 9 of the Specific Relief Act, 1877 by the petitioner/his legal heirs was dismissed whereas suit for specific performance filed by respondent No.1 Mehanga was decreed.
7. When confronted to the learned counsel for petitioner that whether the judgment and decree whereby suit of respondent No.1 for specific performance has been decreed, has been challenged before this Court, the answer is in negative. When confronted that when there is a decree in favour of respondent No.1 which is a decree for specific performance and same has not been challenged before this Court, how this writ petition is competent whereby he has challenged the concurrent dismissal of his suit filed under section 9 of the Specific Relief Act, 1877, learned counsel states that he prays for conversion of writ petition into revision petition to challenge the judgments and decrees passed by the learned Courts below whereby suit of the respondent for specific performance was decreed by the learned trial Court and the learned first appellate Court has dismissed the appeal filed by the petitioner. Relies upon the cases of "Ghulam Rasul and 9 others v. Sher Muhammad through Representative and 2 others" (2012 YLR 97), "The Administrative General of Auqaf, Government of Pakistan and another v. The District Judge, Sargodha and 7 others" (2001 CLC 218), "Mst. Ghausia Hasan v. Mst. Munawar Jahan and others" (PLJ 2007 SC 395), "Kaley Khan v. Additional District Judge, Multan and 3 others" (2006 MLD 210), "Zahid Zaman Khan and others v. Khan Afsar and others" (PLD 2016 Supreme Court 409), "Jane Margrete William v. Abdul Hamid Mian" (1994 SCMR 1555) and "Mst. Ishrat Jehan and another v. Syed Anis ur Rehman and another" (2013 CLD 276). Prays for conversion of this writ petition into revision petition by stating that he will not press this writ petition against the judgment and decree whereby his suit filed under section 9 of the Specific Relief Act, 1877 has been dismissed. States that even otherwise if the judgment and decree in a suit for specific performance is not challenged, this writ petition is no more proceedable.
8. On the other hand, learned counsel for the respondents states that the impugned judgment and decree of learned first appellate Court is of the year 2001 and after more than fifteen years of passing of the impugned judgment and decree, prayer is not tenable under the law. Prays for dismissal of the writ petition by opposing the conversion of writ petition into revision petition.
9. I have heard the learned counsel for the parties at length and gone through the record with their able assistance.
10. Through consolidated judgment, an appeal filed by the petitioner against the judgment and decree dated 29.11.1997 whereby suit filed by the respondent Mehanga for specific performance was decreed, has been dismissed. The petitioner has not appended the decree sheet of dismissal of his appeal. The judgment is consolidated one whereby his revision petition against the dismissal of his suit for possession filed under section 9 of Specific Relief Act, 1877, was also dismissed but the fact remains that decree sheet has ever been prepared separate in each file even if a judgment is consolidated one and the petitioner has not appended the decree sheet of the appeal even he has not appended memo of cost which should have been prepared in dismissal of his civil revision. I have further noticed that judgment of the learned trial Court is also consolidated one whereby suit filed by the petitioner under section 9 of the Specific Relief Act, 1877 has been decided and dismissed and the suit for specific performance filed by respondent No.1 Mehanga has been decreed. The petitioner has appended consolidated judgment with this writ petition but only decree sheet whereby his suit filed under section 9 of the Specific Relief Act, 1877 has been dismissed, has been appended with this writ petition whereas decree sheet of suit for specific performance has not been appended. Further I have noticed that consolidated judgment of learned first appellate Court is dated 03.07.2001 whereby certified copy was applied on 05.11.2001 which was prepared and delivered on the same day i.e.05.11.2001 and the instant writ petition was filed before this Court on 24.11.2001. Meaning thereby that this writ petition was filed after more than four and half months of passing of the iinpugned judgment and decree of learned first appellate Court. In this view of the matter, the judgments relied upon by the learned counsel for the petitioner are not applicable and helpful for the petitioner. Admittedly, when the writ petition against the judgment and decree of dismissal of suit for possession filed under section 9 of the Specific Relief Act, 1877 is not competent, the prayer with regard to permission to convert this writ petition into civil revision cannot be granted in the above circumstances when the decree sheet of the learned lower appellate Court as well as learned trial Court granted in a suit for specific performance has not been appended with this writ petition and further limitation also come in the way when the writ petition has been filed after more than four and half months of passing of the impugned judgment and decree of learned first appellate Court whereby the appeal filed by the petitioner was dismissed. In this view of the matter, permission to convert the instant writ petition into civil revision cannot be granted. This writ petition stands dismissed accordingly.
ZC/M-49/L Petition dismissed.