PLJ 2010
[
Present: Hafiz Abdul Rehman Ansari, J.
SHAHID RAZA--Petitioner
versus
A.D.J. and others--Respondents
W.P. No. 9430 of 2009, decided on
11.12.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Specific Relief Act, (I of
1877), S. 9--Suit for possession--Joint owners of the property--Defendant filed
an application u/O. VII, R. 11, CPC alleging that the plaintiff and defendant
were joint owners of the property--Application was dismissed and the suit was
decreed ex-parte--Respondents moved an application u/S. 12(2) of CPC on the
ground that impugned judgment and decree had been obtained through fraud and
misrepresentation which was dismissed--Challenged through revision petition
which had been accepted--Assailed--Controversy between the parties could only
be resolved after framing the issues and recording the evidence--Held: Trial
Court committed illegality dismissing application, filed u/S. 12(2), CPC for
setting aside judgment without framing issues on the question of fraud--Case
was remanded rightly to trial Court with direction to decide the application
filed by defendant u/S. 12(2) of CPC afresh after framing necessary issue and
then after recording of evidence of the parties--Petition was dismissed. [P. 431] A
2008 SCMR 236, PLD 2006
SC 773 & 2008 SCMR 236, rel.
Syed Jawad Jafri, Advocate on behalf of
the petitioner.
Date of hearing: 11.12.2009.
Order
The petitioner Shahid Raza S/o Safdar Ali
field a suit for possession under Section 9 of the Specific Relief Act against
the predecessor in interest of Respondents No. 3 to 9 namely Muhammad Abdullah.
The defendant Muhammad Abdullah, put appearance before
the learned trial Court and filed an application under Order VII, Rule 11 CPC
alleging therein that the plaintiff and defendant are joint owners of the
property. It was further alleged that without partition of the joint property
the plaintiff cannot claim for the possession of the specific portion of the
joint property and the said application filed under Order VII, Rule 11 of CPC
was dismissed vide order dated 23.9.2008, as the defendant was proceeded
ex-parte. Thereafter the plaintiff was directed to produce ex-parte proof and
the case was adjourned to 31.10.2008 and after recording the evidence of the
plaintiff the suit was decreed ex-parte vide judgment and decree dated
19.12.2008.
2.
Later on, on 3.2.2008, the respondents moved an application under
Section 12(2) of CPC, on the ground that the impugned judgment and decree has
been obtained through fraud and misrepresentation. The
said application under Section 12(2) CPC was dismissed by the learned trial
Court vide order dated 29.4.2009. The respondents assailed the order dated
19.4.2008 through revision petition and the same was accepted vide order dated
8.9.2009. Hence, the instant writ petition has been filed for setting aside the
impugned order dated 8.9.2009, passed by the learned Addl: District Judge,
D.G.Khan.
3.
Learned counsel for the petitioner contended that the impugned order
dated 8.3.2009 is against law and facts and is liable to be declared null and
void. That no element of fraud or misrepresentation from the
side of the petitioner/plaintiff has been correctly visualized. That the
defendant Muhammad Abdullah and his counsel committed willful absent from the
proceedings of the learned trial Court and the learned trial Court has rightly
observed that Mr. Jehangir Khan Wadani, Advocate was the advocate of the
defendant and he was properly engaged and it was his responsibility to pursue
the case. The learned counsel relied upon "Messrs Dadabhoy Cement
Industries Ltd. and 6 others vs. National Development Finance Corporation,
Karachi" (2002 SCMR 1761), Shafi Muhammad and 13 others vs. Muhammad
Farooq and 3 others" (1989 CLC 937), "Mrs. Anis Haider and others vs.
S. Amir Haider and others" (2008 SCMR 236), "Industrial Development
Bank of Pakistan vs. National Engineering Works and others" (1993 MLD
1344), during the arguments. Learned counsel for the petitioner submitted that
it was not necessary that in each and every case in which an application under
Order 12(2) CPC was filed, issues were necessary to be framed. That the learned
Addl: Sessions Judge committed illegality while setting aside the order dated
29.4.2009 passed by the learned trial Court the order passed by learned Addl:
District Judge is not based on cogent and sagacious reasoning and the same is
liable to be set aside.
4.
It is evident from the perusal of record that the learned Addl: District
Judge while passing the impugned order has observed as under:-
"I am afraid that impression token
and reasons advanced by learned Civil Judge were not much inspiring rather
misconceived. There is no cavil to the preposition that a decree passed against
a dead person is void ab-initio as per dictums laid down by this Court. Learned
Court further observed that Petitioners No. 1 & 2 are minors were as
Respondent No. 3 is the widow of original defendant Abdullah, widow as parda
observing lady and Courts are supposed to protect their interest. When an
advocate is engaged by his client, who later or expires, the advocate has least
interest the case unless legal heirs/family members approached him, therefore,
non-appearance of above advocate in the above suit after the death of his
client was not unnatural.
Even if, the learned civil judge opts to
dismiss such like application, he was supposed to keep in view the questions
raised on behalf of petitioners, which involved and require thorough
inquiry/investigation not possible without recording the evidence. Whether any
mis-representation was exercised by Respondent No. 1 or any fraud was committed
by, or the question requiring detailed inquiry into the fact.
Impugned order passed by learned civil
judge was not maintainable which is hereby set aside. Learned Court shall
proceed into the matter after framing the issues and shall record the evidence.
Matter is remanded back in above terms petitioner is accepted."
5.
I have heard the arguments of learned counsel for the petitioner and
perused the impugned order dated 29.4.2009, passed by the learned Addl:
District Judge, D.G.Khan, which is based on cogent reasons. The defendant after
submitting the written statement in the learned trial Court disappeared from
the scene and the ex-parte decree was passed against the
predecessor-in-interest of the present respondents, who filed an application
under order 12(2) CPC for setting aside the same on the ground of fraud and
mis-representation. The controversy between the parties can only be resolved
after framing the issues and recording the evidence. I am fortified from the
judgment of Supreme Court of Pakistan reported in "Mrs. Anis Haider and
others vs. S. Amir Haider and others" (2008 SCMR 236), it is held when
there are serious allegation of fraud, the application under Section 12(2) of
CPC cannot be decided without recording of evidence. The same ratio is settled
in "Muhammad Akram Malik vs. Dr. Ghulam Rabbani and others" (PLD 2006
SC 773) and "Mrs. Anis Haider and others vs. S.Amir Haider and
others" (2008 SCMR 236). Learned trial Court committed illegality
dismissing application, filed under Section 12(2) of CPC, for setting aside
judgment and decree dated 19.12.2008 without framing issues on the question of
fraud. Learned lower Court rightly allowed revision and remanded the case to
learned trial Court with the direction to decide the application filed by
defendant under Section 12(2) of CPC afresh, after framing a necessary issue
and then after recording of evidence of the parties on said issue. Learned
counsel for writ petitioner has not pointed out any illegality or irregularity
committed by learned Additional District Judge.
I would
not like to interfere in the judgment dated 19.12.2008 passed by learned
Additional District Judge in writ jurisdiction. This writ petition is dismissed
in limine.
(R.A.) Petition
dismissed.