BAQIR vs Mst. SHAMIM BIBI and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---The petitioner has instituted instant petition for leave to appeal against the judgment dated 24th April, 2000 passed by Lahore High Court Multan Bench whereby Civil Revision 0.111 of 2000 filed on his has been dismissed.

2. Briefly noting facts of the case are that Civil Suit No,499 of 1994 filed by petitioner against respondents was dismissed whereas the suit of respondent No,1 filed against the petitioner and others was decreed. As such petitioner preferred appeal in the Court of District Judge, Khanewal.

During pendency of appeal the petitioner and his counsel offered that if respondent No:6 Salabat will depose on the Holy Qur'an that the petitioner has no right or interest in the suit property and the same was validly gifted to Mst. Shamim, the respondent No,1 then his appeal may be dismissed as withdrawn. The proposal of petitioner so made by him was accepted and respondent No,6 expressed his willingness to make proposed statement after taking oath on the Holy Qur'an.

Consequently special oath was administered to respondent Salabat who deposed after holding the Holy Qur'an in his hand and taking oath on it that plaintiff (petitioner) has no right or interest in the suit-land and the suit-land was validly gifted to Mst. Shamim Bibi respondent No,1 and his appeal is liable to be dismissed. It may be noted that special oath was administered by District Judge, Khanewal himself and he himself recorded the statement of Salabat. In view of statement of respondent Salabat on the Holy Qur'an the counsel appearing for petitioner and others i.e, Asghar Ali as well as counsel of Mst. Shamim and respondent No,6 and others made a joint statement that the appeal may be dismissed as withdrawn. Accordingly on the same day i.e, 23rd April, 1999 in view of the fact that respondent Salabat had taken special oath and a joint statement was also made by counsel of petitioner for dismissal of the appeal, therefore, appeal was dismissed as withdrawn leaving the parties to bear their own costs.

3. Surprisingly towards 12th June, 1999 petitioner submitted an application under section 12(2), C.P.C. For setting aside the orders dated 23rd April, 1999 inter alia on the averments that his advocate in connivance of his. Opponents had got dismissed the appeal without informing him.

The application was contested by respondents repudiating the charges set forth therein. Learned District Judge dismissed the application vide a well reasoned and detailed order, dated 26th November, 1999. Against this order Civil Revision was filed before Lahore High Court Multan Bench which has been dismissed as such instant proceedings have been instituted.

4. Learned counsel appearing for petitioner reiterated the grounds agitated in the application under section 12(2), C.P.C. By contending that petitioner is an infirm person because he is 95 years old, therefore, he failed to understand the implication of administering special oath to the other side and the opponents illegally persuaded him to relinquish his claim if special oath on the Holy Qur'an is taken by Salabat.

5. After hearing learned counsel and having gone through the proceedings of administering special oath to Salabat on 23rd April, 1999 we are not convinced to agree with the contentions put forth by learned counsel for petitioner. A careful perusal of proceedings would indicate .That petitioner alongwith his counsel voluntarily made offer to respondent No,6 Salabat for taking special oath. Learned District Judge drew the proceedings himself during course whereof statement of respondent Salabat was carefully recorded on oath. Thereafter a joint statement was made for dismissal of the appeal. The petitioner did not protest at that time either against making offer to respondent Salabat to take special oath or recording of his statement on the Holy Qur'an in his presence as well as for dismissal of appeal as withdrawn inasmuch as right from 23rd April, 1999 till filing of application dated 12th June, 1999 under section 12(2), C.P.C. No objection whatsoever was raised before any forum. Besides in the application it has also not been alleged that a fraud has .Been committed with him. To the contrary he has shown grievance either against his son-in-law who was his attorney or against the counsel who was representing him. The contents of application abundantly makes it clear that attorney of the petitioner who is his son-in- law was present in the Court at the time of recording of the statement of respondent SCMR Salabat that petitioner has no interest in the property and it has been gifted to Mst. Shamim Bibi. Thus, the application lacks in alleging fraud or misrepresentation against respondent No,1 or respondent No,6, therefore, in such situation the application was not liable to be entertained and the learned District Judge has rightly dismissed the same vide order, dated 26th November, 1999. Similarly learned High Court had no occasion to interfere in the impugned order of the District Judge in exercise of its jurisdiction under section 115, C.P.C. Because order impugned before it was not suffering from any jurisdictional error, illegality or irregularity and merely on the basis of an afterthought, statement made by petitioner an order dismissing of appeal passed on the basis of statement of respondent Salabat given by him on the Holy Qur'an cannot be interfered with. In addition to it, besides the factual aspects of the case no legal point of public importance has been agitated before us, therefore, we are persuaded to hold that the impugned order being unexceptionable is not open to interference by this Court in exercise of its jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan.

' Thus, for above reason petition being devoid of force merits dismissal. Accordingly leave to appeal is declined.