2014 C L C 92
[Balochistan]
Before Muhammad Noor Meskanzai, J
Sayed TAYAB ALI ----Petitioner
Versus
Sayeda NUSRAT JAHAN and 12 others ----Respondents
Civil Revision No.324 of 2012, decided on 26th July, 2013.
(a) Civil Procedure Code (V of 1908) ---
----O. XXXVIII, R. 1, O. XX, R. 12 & S.151 ---Qanun -e-Shahadat (10 of 1984), Art. 115 ---
Partition Act (IV of 1893), S. 4 ---Suit for partition ---Application for preliminary decree for
possession and mesne profits ---Furnishing of surety ---Estoppel ---Inherent powers of court ---
Plaintiff filed suit for partition wherein she moved an application for preliminary decree for
possession and mesne profits which was dismissed however, Trial Court directed defendant to
furnish surety amount ---Defendant filed application for reduction of the same which was
dismissed ---Validity ---Impugned order was passed with the consent of parties ---Defendant was
estopped to challenge the validity of said order on the principle of estoppel ---Defendant while
filing application for reduction of surety amount was satisfied with the nature of order but was
aggrieved of the quantum of surety amount ---Defendant could not be allowed to approbate and
reprobate ---No misexercise of jurisdiction nor any illegality, irregularity, perversit y or infirmity
was found in the impugned order ---Revision was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revision ---Competency ---Order passed on application under S.151, C.P.C. was
appealable and revision was not competent.
Zahid Malik for Petitioner.
Nemo for Respondents.
Date of hearing: 20th June, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant revision petition is directed against
the order dated 6 -9-2012 passed by the Senior Civil Judge -I, Quetta whereby, the application
under Order XX, Rule 12, C.P.C. filed by petitioner was rejected.
2. The brief facts relevant for the disposal of instant petition are that the respondent No.1
instituted a suit for partition, rendition of accounts and permanent injunction against the
petitioner and private respondents in the Court of Senior Civil Judge -I, Quetta. It was averred in
the plaint that she being a real daughter/legal heir of the late Sayed Mahboob Ali Naqvi is also
entitled for the share in the assets of her late father. The petitioner and private respondents by
way of filing written statement contested the suit. According to the petitioner the respondent
No.1 is an adopted daughter of Sayed Mahboob Ali Naqvi, therefore, she is not entitled for the
relief claimed for. During the pendency of suit, respondent No.1 filed an application under Order
XX, Rule 12, C.P.C. for passing a preliminary d ecree to the extent of possession and msene
profit. The trial Court vide order dated 6 -9-2012 rejected the application filed by the respondent
No.1, however, directed the petitioner to furnish surety in sum of Rs.10,00,000/ - in view of
Order XXXVIII, Rule 1, C.P.C. The petitioner feeling aggrieved with the order filed an
application under section 151, C.P.C. for reduction of the surety amount, which was rejected by
the trial Court vide order dated 22 -10-2012. Hence, instant application.
3. Learned counsel for the petitioner states that the order passed by the trial Court is
contrary to the norms of natural justice. It was further maintained that the lower court has failed
to appreciate facts of the case in its true perspective. The impugned order is harsh and does not
commensurate with the rents per annum of the disputed property. It was further stated that the
relationship of respondent No.1 with the petitioner is disputed and according to the petitioner she
is adopted child, besides, the application for r eduction of surety was not considered in
accordance with law.
4. I have considered the contentions so put forth by the learned counsel for the petitioner
and have perused the case minutely. The perusal of record reveals that the respondents despite
servi ce remained absent, therefore, they were proceeded against ex parte vide order dated 21st
December, 2012. The grievance of the petitioner does not appear to be plausible and justifiable
for a couple of reasons. Firstly, the order impugned is an appealable as contemplated by Order
XLIII, Rule 1, C.P.C. clause -(q) and since no appeal has been filed; therefore, revision is not
competent. Secondly, the order dated 6th September, 2012 has been passed by the Senior Civil
Judge -I, Quetta with consent of parties. F or the sake of convenience the operative portion of such
order is reproduced hereinbelow: ---
"Thus, with the consent of learned counsel for the parties, it is for the interest of justice,
let the defendant No.1 may be asked for furnishing security/suret y in view of Order XXXVIII,
Rule 1, C.P.C. to the extent of income earned from the rented shops on monthly basis, which
calculated about Rs.10,00,000/ - per year. Therefore, the defendant No.1 is directed to furnish
surety of Rs.10,00,000/ - on the next date of hearing."
5. Since the petitioner has consented for the passing of impugned order, therefore, he is
estopped to challenge the validity of the order on the principle of estoppel contained in Article
115 of Qanun -e-Shahadat Order, 1984. Thirdly, the pe titioner while filing application for
reduction of surety felt satisfied with the nature of the order but remained aggrieved of the
quantum of surety, whereas in the instant revision petition the petitioner has requested for setting
aside of the impugned o rder. So, the petitioner cannot be allowed to approbate and reprobate.
There is no misexercise of jurisdiction nor any illegality, irregularity, perversity or infirmity is
found in the order impugned; thus, finding no merits in the petition, the same is di smissed with
cost.
AG/81/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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