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Petitioner: ALLAHDIN VS Respondent: ALAMUDDIN
1988 S C M R 763
1988 S C M R 763
Present: Muhammad Haleem, C.J., Shafiur Rahman, Zaffar Hussain Mirza, Saad Saood Jan and Ali Hussain Qazilbash, JJ
ALLAHDIN and another‑‑Appellants
versus
Haji ALAMUDDIN and another‑‑Respondents
Civil Appeal No.69 of 1982, decided on 27th August, 1987.
(From the judgment of the Sind High Court, dated 3‑5‑1981, passed in Revision Application No. 269 of 1972).
Civil Procedure Code (V of 1908)‑‑
‑‑‑S-12(2) & O.I, R.3‑‑Joinder as defendants at revision stage‑ Allegation of fraud‑‑Claim of ownership through gift‑‑Denied by alleged donor‑‑Consequence of‑‑Dispute about ownership of property‑ Appellants at revision stage claimed ownership to suit property, alleged fraud and sought permission to defend the case‑‑Such application was rejected on ground that there being a dispute between the parties with regard to property in dispute, the matter ought to be decided in separate proceeding‑‑Order impugned‑‑Plea raised that question of ownership of suit property having been decided by High Court in revision application, no scope was left for appellants to succeed in their claim of ownership of property by virtue of gift made by respondent in their fovour and that separate suit would be barred under S.12(2), C.P.C.‑‑Appellant joining proceedings in High Court as interveners with a claim to have become owner through a gift made in their favour by respondent No.1 and this claim having been denied by said respondent, allegation of fraud required recording of elaborate evidence which High Court had rightly refrained to do‑‑High Court having made it clear that impugned order will not prejudice right of the interveners, an opportunity was afforded to appellants to establish their right in a proper forum‑‑Appeal being devoid of merit, dismissed.
Shahenshah Hussain, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record (absent) for Appellants.
Nemo for Respondents.
Date of hearing: 27th August, 1987.
JUDGMENT
ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave against the order of a learned Single Judge of the Sind High Court, dated 3‑5‑1981.
2. Haji Alamuddin plaintiff (now respondent No.1) had purchased two houses and one plot of land bearing C.S. Nos.162, 163 and 164/13, situate in Nawabshah, in the name of Muhammad Yousuf and Muhammad Farooq (sons of petitioners 1 and 2) and Abdul Hamid son of Abdul Majid, defendants 1 to 3. Subsequently some dispute arose between the parties, as a result of which Haji Alamuddin (respondent No.1) filed a suit for a declaration to the effect that he was the real beneficiary of the suit property while defendants 1 to 3 being merely benamidars had no right, title or interest in the aforesaid property.
An injunction against the defendants for restraining them from interfering with the suit property was also sought. Muhammad Yousuf and Muhammad Farooq defendants admitted the rights of Alamuddin respondent No.1 but Abdul Hamid (now respondent No.2) contested the suit. The learned Civil Judge at Nawabshah after recording the evidence of the parties decreed the suit of respondent No.1 on 30‑4‑1971. Abdul Hamid (respondent No.2) filed an appeal from the above decree in the Court of Additional District Judge, Nawabshah, which too was dismissed on 30‑8‑1972. Still not satisfied he filed a revision petition in the High Court. It was during the pendency of the revision petition that Abdul Hamid submitted an application on 6‑8‑1978 for allowing the revision petition on the strength of an admission made by Haji Alamuddin (respondent No.l) through an affidavit dated 4th May, 1978. The said revision was yet to be decided when on 17‑3‑1979 the appellants submitted an application resisting the application made by respondent No.2 and submitted that the property in question belonged to them and that they should be allowed to defend the case. The learned Single Judge who heard the case allowed the revision petition of Abdul Hamid by his impugned order and so far as the claim of the appellants was concerned, the learned Judge took the view that there being a dispute between the parties with regard to the suit property, it ought to be decided in separate proceeding.
3. Leave in this case was granted to consider the propriety of the order of the High Court.
4. The learned counsel for the appellants has been heard. He strenuously urged that the question of ownership of the suit property having been decided by the High Court in the revision application, no scope has been left for the appellants to succeed in their claim as to the ownership of the property by virtue of gift made by respondent No.1 in their favour and further that since the appellants had categorically raised the plea that the statement of Haji Alamuddin withdrawing his claim of ownership of the suit property was fraudulently made, it was obligatory on the High Court to decide(B this controversy, for a separate suit in this regard would be barred by the provision of section 12(2) of the Code of Civil Procedure.
5. We have examined the above submissions in the light of the findings of the High Court and we do not find any merit in them. The appellants joined the proceedings in the High Court as interveners with a claim to have become owner through a gift made in their favour by respondent No.1. This claim has been denied by the said respondent. The question, therefore, whether respondent No.1 fraudulently withdrew his claim of ownership in favour of respondent No.2 obviously required recording of elaborate evidence, which the learned Judge has rightly refrained to do. The learned Judge while allowing the revision has also made it clear that his order will not prejudice the right of the intervenors and that it will be open to them to ventilate their grievance in any independent proceeding if the same be filed and be competent. Thus, by holding so, an opportunity has been afforded to the appellants to establish their right in a proper forum.
5. We thus find no merit in this appeal and the same is dismissed with no order as to costs.
M.I./A‑172/S Appeal dismissed