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Civil Revision No.l of 1985/BWP, heard on 18th March, 1986.

‑‑‑To advise litigants about their remedies is not function of Court.

‑‑‑S. 12(2)‑‑Right of application under section 12(2) not restricted to parties to original suit.

Muhammad Yaqub v. Mst. Nooran etc. 1983 C L C 1948 ref.

‑‑‑O...XXXIX, Rr. 1 & 2‑‑Temporary injunction‑‑Petitioners not showing a prima facie case in their favour and failing to furnish any tangible proof with regard to their possession of property in dispute are not entitled to interim relief claimed by them‑‑Order of Court below refusing to issue temporary injunction upheld.

Muhammad Yaqub v Mst Nooran etc 1983 C L C 1948 ref.

‑‑‑S. 115 & O. XXXIX, Rr. 1 & 2‑‑Revisional jurisdiction‑‑Orders of Court below refusing to issue temporary injunction, in exercise of discretionary jurisdiction which they exercised in keeping with guiding principles laid down by superior Courts, such order could not be said to have been, passed either fancifully or arbitrarily‑‑Orders, held, not amenable to exercise of revisional jurisdiction.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 and Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 rel.

Muhammad Jaffar Hashmi for Petitioners.

Ch. Abdul Sattar for Respondents Nos. 2 to 6.

Date of hearing: 18th March, 1986.

The facts out of which, this revision petition, against refusal by the two Courts below to issue a temporary injunction arises, are that on 21‑4‑1955, the then Improvement Trust, Rahimyar Khan had auctioned building plots bearing Nos. 144 and 145 with an area each of 20' x 80' which were auction‑purchased by Faiz Hussain and his four brothers (respondents Nos.2 to 6 herein). They paid up the dues but were not able to get their possession. In the meanwhile, Municipal Committee, Rahimyar Khan took over the rights and liabilities of the Improvement Trust and they repeatedly applied to it for doing the needful but since the present respondents Nos.7 to 11 had come to occupy the property, therefore, the auction‑purchasers were obliged on 23‑6‑1976 to file a suit for specific performance of agreement against the Municipal Committee whereto they also impleaded the said respondents Nos. 7 to 11 as defendants. Their claim was conceded by the Municipal Committee but the suit was contested by the other defendants (respondents Nos.7 to 11 herein) and was ultimately decreed in favour of the plaintiffs on 20‑12‑1982 and appeal and revision filed there against were also dismissed. The decree was thereafter sued out to be executed by them wherein the judgment‑debtors (respondents Nos.7 to 11 herein) filed an objection petition against their ejectment on the ground that there had not been passed any decree with regard to their ejectment. While the execution and the said objection petition were still pending, on 6‑2‑1984, the present petitioners put in an application in the trial Court under section 12(2) of the C.P.C., by impleading both the decree‑holders and judgment‑debtors as respondents therein, for the decree dated 20‑12‑1982 being set aside for the reason that in actual fact they, and not the judgment‑debtors, are in possession of the relevant plots but had not been impleaded as parties to the suit to be bound by the said decree. They also prayed for their being impleaded as defendants in the suit upon setting aside of the decree. Along therewith, they also put in an application for grant of a temporary injunction to restrain their ejectment from the property pending the decision of their parent petition.

2. Learned trial Judge found that some of the applicants were related to the judgment‑debtors and they appeared to have come up for perpetuating the possession of judgment‑debtors because it could not be believed that if at all they were in possession of the property then they could have remained ignorant about the suit which had remained pending for almost seven years and even a commission had visited the site and still the matter may have come to their knowledge only after the decree had been sought to be executed. He also observed that the alleged possession of the applicants over the property was not by itself enough to assume any title in their favour and since they were still under. .an obligation to also prove fraud in their parent petition, therefore, they could not be said to have a good prima facie case in their favour: Consequently, he dismissed their application on 17‑7‑1984.

3. An appeal there against filed by the said applicants has been dismissed by a learned Additional District Judge by affirming the view and conclusion of the trial Court. In his judgment, he has also noticed that if the applicants and not the judgment‑debtors may have been in possession of the property then it could not be expected that the judgment‑debtors may have contested the case upto the High Court because they would rather have straightaway taken the position that they are not in possession of the property. Keeping in view their failure to raise such an objection at any stage and, to the contrary hotly contesting the matter all along, coupled with the fact that some of the applicants were related to judgment‑debtors, he concluded that their application was dishonestly motivated for perpetuating the possession of judgment‑debtors. He also took notice of the fact that the relevant decree had been upheld upto the High Court and, as had been held in Muhammad Yaqub v. Mst. Nooran etc. 1983 C L C 1948 an application under section 12 (2) of the C.P.C. could not be filed in the trial Court. They have now come up to this Court on revision.

4. Learned counsel appearing in support hereof has not denied the relationship of the applicants with the judgment‑debtors, as has been mentioned by the two Courts below, and has stated that the litigation in the suit had not ended up in the High Court but had actually gone up to the Supreme Court, therefore, on the view prevailing with the learned Additional District Judge, it was wrong to suggest that the applicants may have sought their remedy in the High Court. It is not correct to assume that learned Additional District Judge may have advised the applicants to take their remedy in any particular Court. It is not the function of a Court to advise the litigants about their remedies and learned Judge in the appeal below has not even purported to do so. It is only in the context of considering the existence of a prima facie case for the applicants that he has observed that the oarenis petition of the applicants before the trial Court was not maintainable in law and this conclusion is not demolished by the foregoing contention of the learned counsel who has urged also that the precedent case relied upon by the learned Additional District Judge is distinguishable on the ground that the applicants in the present case were not parties to the auit but even this contention amounts to only begging the question and cannot‑carry the case of the petitioners any far because, as has been held in Abdur Rauf and others v. Abdul Rahim Khan, Advocate P L D 1982 Pesh. 172, right of application under section 12(2) of the C.P.C. B is not restricted to the parties to the original suit. The fact, however, remains that in this case the petitioners have to show the existence in their favour of a prima facie case but so far they have not been able to furnish any tangible proof with regard to their possession of the property in dispute. On the contrary, their own stand of the petitioners in para. 7 of their parent‑petition under section 12(2) of the C.P.C.is that they are not in possession of the two plots where about decree has been secured by respondents Nos.2 to 6 the original plaintiffs. Obviously, they are not entitled to the interim relief claimed by them with regard to the plots in dispute.

5. Since the impugned orders relates to the domain of the discretionary jurisdiction of the two Courts below which they have exercised in keeping with the guiding principles laid down by the superior Courts, therefore, their jurisdiction cannot be said to have been exercised either fancifully or arbitrarily within the rule of law laid down in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 as re‑affirmed in Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53. Hence, their orders do not become amenable to the exercise of revisional jurisdiction.

6. There is no case made out for interference, hence, dismissed with costs.

M. Y. H. Petition dismissed.

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