Mst. AMINA BEGUM vs CHAIRMAN, KARACHI DEVELOPMENT AUTHORITY and 5

1. ' ABDUL RAHIM KAZI, J.---The petitioner has impugned the order passed by the 3rd ADJ (East), Karachi in Civil Revision No,16/86 passed on 4-8-1987. Briefly, the relevant facts are that the present petitioner had filed a Civil Suit bearing No,2393/78 before the Court of VII Civil Judge, Karachi against the present respondents Nos,1, 2 and 3 for declaration, cancellation of documents and injunction with regard to plot mentioned in the suit. Subsequently respondent No,4 was also joined in the suit as it was learnt that the present respondent No,3, who was also claiming the said plot had alienated the same to the respondent No,4. The suit of the present petitioner was decreed on 13-12-1983. The decree was not challenged in appeal and the petitioner then filed Execution Application No,46/85. In the meanwhile, the present respondent No,5, who is the husband of the respondent No,4 claiming his right in the property, filed application under section 12(2), C.P.C.

2. Before the lower Court which was dismissed. He then filed a civil suit in the Court of IX CJ (East), Karachi being Suit No,1786/85. In this suit his application was rejected under Order 7, Rule 11, C.P.C.

3. An Appeal (C.A. 86/86) was filed by him which was also dismissed on 4-8-1987. The respondent No,5 had also preferred a revision application which was also dismissed by the learned III ADJ (East), Karachi by the impugned order, observing that the decree in the suit of the petitioner would not be binding on him as he was claiming his right in the property through the documents alleged to have been executed in his favour.

4. ' We have heard Mr. Haji Ameer Ahmad Khan, learned counsel for the petitioner. The above facts show that there are judgments of Civil Court and Appellate Court standing in favour of the present petitioner and that claim of the present respondent No,5 has not been upheld on any of the previous litigation between the parties. It is also an admitted position that the present respondent No,5 was not a party to the suit filed by the petitioner, which stands decreed in her favour and the decree has attained finality as the same was not challenged in any higher forum. However, point raised by the learned counsel is with regard to observation by the learned III ADJ, Karachi that the said decree would not be binding on the present respondent No,5 as he was not party to the suit of the petitioner. Of course, by virtue of the provisions of section 43 of the Specific Relief Act no judgment or decree in suit would be binding on a person unless he is a party to the suit or is claiming through any party to the suit. Under these circumstances we find no force in this petition.

5. However, it is clarified that the said decree would not be binding on the respondent No,5 if he is claiming any independent right in the plot in dispute but if the claim of the respondent No,5 is based on having acquired any right in the said plot through any of the partyies to the suit then the said decree would be binding on him. With these observations we dismiss the petition. However, there will be no order as to costs.