MUBARAK ALI vs MUHAMMAD RAMZAN and others

' MUNIR A. SHEIKH, J.--- The petitioner seeks leave to appeal against the judgment, dated 25-6- 2002 of the Lahore High Court, Lahore, through which revision petition filed by him has been dismissed.

2. The petitioner filed two separate suits, one for declaration and partition of the property and the other for redemption of the said property. In redemption suit, the case of the petitioner was that Khadim Hussain one of the joint owners of the property had mortgaged a part of the property to a third person which the petitioner as one of the joint owners wanted to redeem. In the suit for declaration, it was averred that the property was still joint and as a consequential relief, a decree for partition of the same was sought.

3. In the suit for partition, the case of the respondents-defendants/joint owners was that the property had already been partitioned through family settlement and the parties were in possession of theirrespective shares allocated to them, therefore, the suit was not maintainable.

The other suit of redemption was contested by Khadim Hussain in which he alone was arrayed as defendant but the mortgagee was not made party.

4. Both the suits were decreed in favour of the petitioner through separate judgments as the suits were not consolidated and evidence was recorded independently in each of them. Khadim Hussain filed two appeals against these judgments and decrees passed in favour of the petitioner before the First Appellate Court which were accepted through the judgments independently written in each appeal.

5. The petitioner did not file appeal in the redemption suit as he felt satisfied with the findings of the First Appellate Court that there was no mortgage. He however, filed revision petition before the High Court in the suit of partition against the judgment and decree of the First Appellate Court to pray for restoration of judgment and decree of the trial Court. In this revision petition, with its memo., certified copies of judgment and decree of redemption suit were filed whereas the other documents such-like evidence and copies of pleadings of partition suit were appended. In the heading of the revision petition, it was also indicated that the same was being filed from judgment and decree passed by the First Appellate Court in appeal arising from partition suit. This revision petition was filed on 15-8-1997. On 19-8-1997, the High Court issued pre-admission notice.

6. On 25-6-2002 when the revision petition came up for hearing, a preliminary objection was raised on behalf of the respondents that the evidence and pleadings of the suit of redemption had not been appended as from the certified copies of the judgment and decree of redemption suit appended with the revision petition, the same was deemed to have been directed against the judgment and decree passed in the redemption suit. On the other hand, learned counsel appearing on behalf of the petitioner made oral request to allow him to substitute judgment and decree already appended with the revision petition passed in redemption suit with the certified copies of judgment and decree of the partition suit passed by the First Appellate Court. It was declined by the learned Judge in Chamber of the High Court in his discretion through the impugned judgment, dated 25-6-2002 by holding that after a period of about five years, the same could not be allowed as the petitioner's conduct was negligent and also contumacious.

7. Learned counsel for the petitioner when questioned, informed us that application for supply of certified copies of judgment of the First Appellate Court alongwith decree was made on 4-6-1997 which were supplied to the petitioner on 18-6-1997 which means that on 15-8-1997 when revision petition was filed, he was in possession of the said documents. The discretion in the matter exercised by the learned Judge of the High Court against the petitioner on his oral prayer for placing on record the said documents has not been shown to have suffered from either arbitrariness or having not been based on relevant consideration. It has been properly exercised therefore, the same does suffer from any illegality as such we are not inclined to interfere in the same in exercise of discretion under Article 185 of the Constitution in favour of granting leave.

8. For the foregoing reasons, this petition has no merits which is accordingly, dismissed and leave refused.

9. No order as to costs.