Sabir Ali vs Adj etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

JUDICIAL DEPARTMENT

W.P.No.268-2014/BWP.

Sabir Ali Versus Addl. District Judge etc.

S. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding parties or counsel, where necessary Proceeding

16.01.2014. Mr.Ghazanfer Ali Khan, Advocate.

The instant Writ Petition No.268 of 2014 has been filed by the present petitioner against the order dated 11.12.2013 passed by Addl. District Judge, Bahawalnagar who dismissed the civil revision filed by the present petitioner and upheld the order dated 21.06.2013 of Civil Judge Ist Class, Bahawalnagar dismissing the application under section 12(2) of CPC filed by the present petitioner for setting aside the consent judgment and decree dated 24.01.2013 in the suit for Specific Performance of agreement to sell titled “Aurangzeb etc vs. Sabir Ali, detail of which is well mentioned in head note of the suit.

2.Precise facts of the instant matter are that the present petitioner Sabir Ali filed an application under section 12(2) of CPC before the trial Court for setting aside the consent judgment and decree dated 24.01.2013 passed in civil suit for Specific Performance of agreement to sell titled “Aurangzeb etc vs Sabir Ali” with the allegation that he neither appeared before the trial Court on 04.09.2012 nor made any statement of compromise and the judgment and decree dated 24.01.2013 was a result of fraud, forgery and misrepresentation as someone else has

been produced who recorded his statement of compromise illegally by respondent.

3.The application under section 12(2) CPC was contested by the private respondents of the instant writ petition and after hearing the arguments, learned trial Court dismissed the application of the present petitioner on 21.06.2013.

4.Feeling aggrieved the present petitioner filed a civil revision before the District Judge, Bahawalnagar which was entrusted to Mr. Shamshad Ali Rana, Addl. District Judge, Bahawalnagar who after hearing both the parties, dismissed the same on 11.12.2013, hence this writ petition before this Court.

5.Learned counsel for the petitioner contended that both the impugned orders passed by Courts below are against law and facts on the file and have been passed in surmises and conjunctures. It is contended that both the Courts below did not adopt the proper legal procedure and disposed of the application of the petitioner without inquiry and without recording of the evidence. It is further contended that in the instant case, learned trial Court has not framed any issue for deciding the application of the petitioner despite of the fact that there were allegations in the application regarding misrepresentation, and of fraud of obtaining impugned consent judgment and decree dated 24.01.2013. He submitted that the petitioner neither appeared before any Court nor he got recorded any statement of compromise and judgment and decree dated 24.01.2013 is outcome of fraud, impersonation and misrepresentation which is liable to be set aside. It is contended that the petitioner also moved an application during the pendency of revision petition before the Court of learned Addl. District Judge, Bahawalnagar for referring the signature and the thumb impression of the petitioner to the Hand Writing Experts for comparison. Learned counsel for the petitioner has focused mainly on the point that

after moving application under section 12(2) of CPC, the trial Court was duty bound to frame the issues and call the evidence of the parties and disposal of the application under section 12(2) of CPC without recording evidence is totally illegal and both the Courts below have committed illegality in this respect. Both the orders, thus, are liable to be set aside.

6.I have heard the learned counsel for the petitioner and perused the record.

7.Aurangzeb etc private respondents in the instant writ petition filed a suit for specific performance of agreement to sell pertaining to land measuring 59 kanals on 20.06.2012 against the present petitioner(Sabir Ali) in trial Court detail of which is mentioned in the head-note of the suit and during the pendency of the suit petitioner alongwith his counsel Rao Muhammad Akmal Taher Advocate appeared before the trial Court on 04.09.2012 and made a statement of compromise which is reproduced as under:-

8.The present petitioner was identified by his counsel Rao Muhammad Akmal Taher Advocate and learned trial Court obtained thumb impression as well as signatures of the petitioner on the margin of the order sheet and also obtained signatures of his learned counsel Rao Muhammad Akmal Taher Advocate as identifier of the petitioner and the suit of the private respondents of the instant writ petition was thereafter decreed on 24.01.2013. I have perused the application under section 12(2) CPC moved by the present petitioner minutely where the present petitioner has not stated anywhere that Rao Muhammad Akmal Taher Advocate has not been engaged by him as his counsel in the suit titled Aurangzeb etc vs Sabir Ali and he had not identified him on 04.09.2012 while making the statement of compromise before the trial Court in above stated suit and likewise there is no affidavit of Rao Muhammad Akmal Taher Advocate annexed with the application stating therein that he did not identify the petitioner(Sabir Ali) being defendant at the time of recording statement of compromise on 04.09.2012 before the trial Court in above stated suit and no allegation against learned counsel Rao Muhammad

Akmal Taher Advocate has been leveled by the present petitioner in his application that he wrongly identified him on 04.09.2012 before the trial Court in said suit while making statement of compromise. As far as the allegation that the compromise decree was obtained by fraud and misrepresentation, the petitioner failed to substantiate the same as no particulars or details thereof have been given in his application under section 12(2) of CPC while challenging judicial proceedings whereas presumption of truth is attached to that proceedings and mere application not supported by any material would not invariably warrant inquiry or investigation in each case. It is for the trial Court to see whether the facts and circumstances of the case require further probe into the allegations or not. Where the Court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it dispense with the same and can proceed further to decide the matter so it is also not incumbent on the trial Court to frame issues in each and every case, but it depends upon the facts and circumstances of each case. The petitioner himself admitted in his statement of compromise recorded by the trial Court on 04.09.2012 in presence of his counsel that he had received Rs.16,20,000/- out of the Court and received Rs.6,30,000/- in the Court from the plaintiffs and has no objection for decreeing the suit of the plaintiff, so the consent decree did not suffer from fraud, misrepresentation or want of jurisdiction and therefore, the same was not amenable to challenge under section 12(2) of CPC as none of the ingredients for challenging the validity of decree as contemplated in section 12(2) of CPC was available to the petitioner. Both the Courts below have exhaustively dealt with each and every point alleged before them and orders of the Courts below are neither perverse nor illegal. Reliance is placed on case titled

“Messrs DADABHOY CEMENT INDUSTRIES LTD, and 6 others versus

NATIONAL DEVELOPMENT FINANCE

CORPORATION, KARACHI”(PLD 2002 Supreme Court 500).”

For the foregoing reasons, the instant writ petition has no merits and the same is dismissed in Limine.

(Sadaqat Ali Khan) Judge Shabbir.

Approved for Reporting.