MUHAMMAD RAFIQUE vs QAMAR ALI and 8 others

ORDER

' The brief facts out of which the present review petition arises are that the agreement to sell was executed between the petitioner and respondents Nos.1 to 3 on 11-3-1999 qua the land in question measuring 62 Kanals for consideration of Rs,10,00,000. The petitioner had paid Rs,700,000 to respondents Nos.1 to 3 as earnest money. Respondents Nos.1 to 3 sold the land in question to respondents Nos.4 to 9 vide registered sale-deed dated 23-7-1999. The petitioner being aggrieved filed a suit for specific performance and permanent injunction before the Civil Judge 1st Class, Narowal. The petitioner also filed an application under Order 39, rules 1 and 2, C.P.C. The application of the petitioner was partly allowed by the trial Court vide order, dated 15-1-2000 The petitioner being aggrieved filed appeal before Additional District Judge, Narowal who dismissed the same vide order dated 7-2-2000. The petitioner being aggrieved filed F.A.O. No,42 of 2000 which was dismissed by a learned Single Judge vide order, dated 15-9-2000. The petitioner being aggrieved filed this review petition.

2. Learned counsel of the petitioner submits that learned Single Judge was erred in law to dismiss the F.A.O. Of the petitioner on the ground that petitioner filed appeal before the Additional District Judge. Narowal. He further submits that Additional District Judge, Narowal had no jurisdiction, therefore, order passed by him is a nullity in the eyes of law. He further submits that non- mentioning of the order of A.D.J. Dated 7-2-2000 in F.A.O. No,42 of 2000 its not fatal and the learned Single Judge was erred in law to dismiss the F.A.O. Of the appellant. He further submits that nobody should be penalized by the act of the Court. It was the duty of the A.D.J. To return the memorandum of appeal to the petitioner to file appeal before the High Court. Learned counsel of the respondents submits that non-mentioning of order of the A.D.J.Is fatal as the order of the trial Court dated 15-1- 2000 merged in the order of the A.D.J. Dated 7-2-2000. He further submits that impugned order of learned Single Judge is valid in the eyes of law. The application filed by the petitioner does not fulfil the requirements mentioned in Order 47 read with section 114 of C.P.C. He further submits that review application is liable to be dismissed. In support of his contentions he relied upon the following judgments:--

(1) Aman Ullah Khan v. Chotey Khan (1978 SCMR 14).

(2) Federation of Pakistan v. Musarrat Bokhari (1993 CLC 2519).

(3) Abdul Ali v. Haji Bismillah (2002 SCM R 203).

' Learned counsel of the .Petitioner in rebuttal submits that order of the A.D.J. Is coram non judice, without lawful authority. Therefore, learned Single Judge was erred in law to dismiss the F.A.O. Of the petitioner. He further submits that petitioner should not be penalized by the wrong advice tendered by the learned counsel of the petitioner.

3. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. The honourable Supreme Court has considered the aforesaid proposition of law in Saleh's case (PLD 1964 SC 97) and laid down a principle that order without lawful authority can be ignored even by the Civil Judge 3rd Class but this view was subsequently changed by the honourable Supreme Court in S. Sharif Ahmad Hashmi v. Chairman (1980 SCM R 711). It is also settled principle of law that order of the trial Court is merged in the order of the A.D.J. Dated 7-2- 2000. The petitioner himself filed appeal before the A.D.J. Who dismissed the same on merits.

Therefore, order of the A.D.J. Dated 7-2-2000 is final between the parties on the well-known principle of res judicata in view of section 11 of C.P.C. As per principle laid down by the honourable Supreme Court in Pir Bakhsh v. Chairman, Allotment Committee (PLD 1987 SC 145). It is also settled principle of law that a party who submitted to the jurisdiction of an Authority has no right to wriggle out from this position that the authority/Court has no jurisdiction to take the cognizance on the well-known principle of estoppel and waiver. We do not find any illegality or irregularity on the face of the record as the ingredients mentioned in Order 47,. C.P.C. Are not fulfilled. The petitioner's counsel wants to re-argue he case in the garb of review application which is not permissible as per principle laid down by the honourable Supreme Court in Mst. Shamim Akhtar v. Alam Hussain (1975 SCM R 16).

' In view of what has been discussed above, this petition has no merit and the same is dismissed.