KHALIL-UR-REHMAN Versus Haji Dr. SARFARAZ HUSSAIN
SADIQ HUSSAIN BHATTI, J.--- Through instant Civil Revision, the applicant has impugned the judgment dated 18.10.2010 passed by V Additional District Judge, Karachi South in Appeal No. 78 of 2009, whereby the same was dismissed.
2. Brief facts of the case are that the respondent filed Suit No. 1576 of 1993 wherein he claimed to be owner of Plot No. 157/6, Bihar Colony, Lyari Quarters, Karachi, consisting of ground plus 2 floors (hereinafter referred to as "suit property"). It was further claimed that the present applicant was occupying the ground floor of the suit property as licensee. However, since the applicant was creating trouble by making false applications to various law enforcing agencies in the name of his mother, and was also not rendering true accounts of the partnership firm, therefore, the license was orally cancelled by the respondent in the month of July, 1993 and a notice was sent to the applicant on 24.11.1993 calling upon him to vacate the said premises. Since the applicant failed to do so, the above suit was filed by the respondent, which was decreed in his favour vide judgment dated 23.4.2009. This judgment was assailed by the applicant by filing Appeal No. 78 of 2009, which, as stated above, was also dismissed. Hence, this revision application.
3. Learned counsel for the applicant argued that the respondent got the judgment and decree from the trial Court by playing fraud in collusion with the bailiff and staff of the said court as the suit of the respondent was dismissed for non-prosecution but the same was restored without service of notice on the applicant and, therefore, the suit proceeded ex parte against him, therefore, the same is liable to be set aside. It was also argued that the suit was not properly valued by the respondent and on this count also the suit was liable to be dismissed. Per learned counsel, the suit property was a joint family property as it was purchased by the respondent from the amount realized from the sale of the native land of the family situated in Punjab and thus the respondent was only a benami khatedar.
4. On the other hand, learned counsel for the respondent fully supported the impugned judgment and further stated that there are concurrent findings against the applicant of the two Courts below which cannot be disturbed by this Court while exercising jurisdiction under section 115, C.P.C. Per learned counsel, no justifiable reason has been mentioned by the applicant calling for interference in the impugned judgments from this Court. He denied that any fraud was played by the respondent in obtaining the judgment and decree from the trial Court. He stated that deliberate attempts were made by the applicant to delay the matter by giving wrong address of the respondent, who is his real brother, and therefore, notices of this revision application could not be served on him for a long time and, due to this the execution application filed by the respondent was thwarted due to pendency of instant revision application. Thus, the applicant has not approached this Court with clean hands. He, therefore, prayed for dismissal of the revision application with costs.
5. I have heard the learned counsel for the parties and have perused the record.
6. At the very outset, it may be mentioned that in case the judgment and decree was obtained from the trial Court by fraud and mis-representation then there was a remedy available to the applicant by way of filing an application under section 12(2), C.P.C. before the same Court. It is also noteworthy that when the suit was filed by the respondent, the applicant was duly served and he filed written statement. However, it is strange that when notices were issued after restoration of the suit, the same were said to be not served on the applicant due to collusion of the bailiff and Court staff with the respondent. Even the applicant could have himself obtained the necessary information from the Court as whether any restoration application was filed within the period of limitation or not and if filed what was its fate. Even otherwise, as stated above, remedy was available to the applicant under section 12(2), C.P.C. which was not availed by him.
7. So far as the benami ownership of the respondent is concerned, the onus was on the applicant to prove the same and he failed to come in the witness box. No documentary evidence is available on record to substantiate the claim of the applicant that the suit property was purchased from the funds arranged by selling 'native land' situated in the Punjab. In case the native land of the family in the Punjab was sold, it must have been sold by consent of all the stakeholders and the proceeds must have been shared according to the share of each stakeholder. Otherwise, objections would have been raised by any aggrieved party.
8. The issue regarding valuation of suit was decided by the trial Court in the negative i.e. against the applicant, on the ground that the onus to prove the said issue was on the applicant but he did not come forward to discharge the same. Therefore, there was no option with the trial Court but to decide the same in favour of the respondent and against the applicant. No illegality or irregularity was committed by the trial Court in this regard. Suffice it to observe that the value of the suit property prevailing at the time of filing of the suit would be taken into consideration and not the value of the same at a future date as it is a common knowledge that value of properties raise by the efflux of time.
9. A perusal of the Order Sheet of the revision application shows that on many dates notices could not be served on the respondent as the address was not correct. It is also noted that the counsel for the applicant remained absent on a number of dates and this revision application was once dismissed for non-prosecution. This lends support to the submission of the counsel for the respondent that the applicant wanted to delay the matter.
10. Before parting with the judgment, I would also refer to para 9 of the grounds wherein the applicant has himself stated that "elder brother of appellant and respondent namely Haji Abdul Khaliq has maintained the whole family from 1966 to 1996 being joint family and both brothers appellant and respondent have not paid a single penny towards the maintaining the domestic expenses". This is a clear admission on the part of the applicant that he did not pay a single penny towards household expenses from 1966 to 1996 but the same cannot be taken as an admission on the part of the respondent as he has not admitted the same.
11. The upshot of the above discussion is that no ground for interference in the concurrent findings of the Courts below against the applicant is made out. Accordingly, I find no merit in the instant civil revision, which is dismissed.
ZC/K-9/Sindh Revision dismissed.