Hayat Khan etc Vs Kifyat etc

v Judgment Sheet

IN THE PESHA\MARHTGH COURT,

PESHAWAR-

TUNCIAL NEPARTfuTENT.

JUDGMENT

Writ Petition No.2 326'P 12017 .

Date of hearing oo. 22.04.2025 Hayat Khan etc Versus Kifayat etc Petitioner (s) by: Mr. Misbahullah Advocate.

Respondent(s) by: Mr. Muhammad Ismail KhaIiI Advocate.

WIOAR AHMAD. J:-. Through instant petition under Article L99 of the Constitution of Islamic Republic of Pakistan, lgT3,petitioners have prayed for following relief:

"that on occeptance of this writ petition, the impugned order ond iudgment dated 27.04.2017, passed by respondent No.9 moy kindly be declared as illegal, unlawful, void ab initio, of no legal effect and ineffective upon the rights of the petitioners and as such be set aside and the order and iudgment dated 22.01.2014 of respondent No.10 may kindly be restoFed."

2.As per contents of instant petition, petitioners alongwith one Muslim Khan son of Umara Khan, Mst.Sham- i-Roshana (\Proshana), Mst.Quraisha daughters of Mursaleen

Khan, Iqbal Hussain, Sabir Hussain sons of Mst.Miraj Bibi daughter of Mst.Muqaisha, grandchildren of Mursaleen Khan had filed Civil Suit No.19711 on 29.06.2001 against petitioner No.3, Raza Khan son of Akbar Khan, predecessor in interest of petitioners and one Danish Khan son of Mursaleen Khan for declaration etc in respect of suit property bearing Khasra No.2136 measuring one Kanal and 19 Marlas situated at village Sufaid Dher, Peshawar, for declaration cum perpetual injunction to the effect that mutation No.6434 dated 19.11.1991 was entered and attested with collusion and connivance of defendants No. | & 3 (predecessor in interest of petitioners). During pendency of suit, plaintiffs had filed an application for withdrawal of suit alongwith compromise deed dated 25.02.2001 @x.PB) on the basis of which suit had been dismissed as withdrawn on 02.03.2001. Then an application under Section L2(2) CPC was filed by one Mst.Shamiro (plaintiff No.ll in main suit) on 02.07.2010, which was dismissed by learned civil Court below vide order dated 03.11.2010. Thereafter, another application under Section t2(2) CPC had been filed on 11.05.2011 by legal heirs of Danish Khan (defendant No.3 in main suit), which application was also dismissed vide order dated 20.04.2012.

Then respondents No.l to 8 filed an application under WP No.2326-Pf2O77.

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Section l2(2) CPC on 07.01 .2013 before leamed civil Court below, which was also dismissed by leamed civil Court with cost of Rs.5000/- vide judgment dated 22.01.2014. Respondents No.l to 8 feeling aggrieved from impugned judgment, filed civil revision before leamed Additional District Judge-III, Peshawar, which was allowed by learned revisional Court vide judgment dated 27.04.2017, thereby remanding the case back to civil Court below with direction to frame issues and record pro & contra evidence in application under Section l2(2) CPC filed by respondents No.l to 8. Aggrieved from impugned judgment, petitioners have filed instant writ petition.

3.Arguments heard and available record perused.

4.Perusal of record reveals that respondents had brought a suit before learned civil Court on 29.06.2000. Then an application was filed for withdrawal of suit alongwith an application for fixation of early date of hearing on 02.03.2001. Learned civil Court on fixation of early date of hearing, had requisitioned the record where statement of Speciat Attorney for the appellant had been recorded on 02.03.2001. In his statement, his Power of Attorney has also been exhibited. Besides, a compromise deed was also exhibited in his statement Ex.PB and an Iqrar Nama as WP No.2326-Pf2O77.

v Ex.PC, in pursuance thereof suit had been dismissed as withdrawn. Then application had been filed under Section l2(2) CPC on 02.07.2010, which was dismissed on 03.11 .2010. Thereafter, another application under Section l2(2) CPC was filed on 14.01 .2013 and it was dismissed by learned civil Court on 22.01.2014 at a cost of Rs.50001'. A revision petition filed against said order was also dismissed vide judgment dated 27.04.2017 by learned Additional District Judge-III, Peshawar.

5.So far as present application under Section l2(2) CPC is concerned, same was filed on 14.01 .2013 after 12 years of the judgment and decree dated 02.03.2001. Learned civil Court had dismissed application under Section l2(2) CPC but revision petition filed there-against was allowed vide order dated 27.04.2017 of learned Additional District Judge-III, Peshawar and the matter was remanded back for recording pro & contra evidence. Perusal of application under Section L2(2) CPC reveals that it has been filed on 14.01 .2013. The assertions made in application under Section l2(2) CPC was that the mutation No.6434 attested on 19.11 .lggl had been the result of fraud and misrepresentation; that plaintiffs had fited a declaratory suit there-against and that in the meanwhile some quarrel had WP No.2326-Pf2O77.

taken place between the parties as a result of which an FIR had also been registered, in which matter had been settled through compromise and that defendants in the garb of said compromise had got the matter decided in their favour; that the compromise on the basis of which suit had been withdraw, was fake and forged one. There is no assertion in the application under Section l2(2) CPC about the role of their Special Attorney and their counsel, both of them had submitted application before civil Court for withdrawal of the suit. The civil Court recorded statement of the Special Attorney where his Special Attomey has also been executed.

The compromise deed and an Iqrar Nama had been exhibited therein. Applicants/petitioners had never contended in their application that their Attorney had defrauded them or that he had not recorded statements before the Court or that their counsel had not filed applications before the Court and that their counsel had not been instructed not to move application for withdrawal of the suit. Hon'ble Supreme Court of Pakistan while rendering its judgment in case of "Messrs Dadabhoy Cement Industries Ltd and 6 others Versus National l)evelopment Finance Corporation, Karachi" reported as PLD 2002 SC 500 has held that while moving an application under Section l2(2) CPC, the basis of fraud or WP No.2326-P12O77.

misrepresentation had to be specifically described alongwith necessary details in the very application under Section L2(2) CPC. Relevant observation of the august Supreme Court of Pakistan rendered in said judgment, is also reproduced hereunder for ready reference:

"As far the ollegotions that the compromise, decree wos obtained by fraild, coercion ond misrepresentation, the petitioners failed to substantiate the some os no porticulars or details thereof had been given in their application under section l2(2), C.P.C. ond mere ollegation not supported by ony moterial, woald not invoriably worront inquiry or investigotion in each cose."

Similarly, in case of "Bashir Ahmad through Legal Representative and others Versus Muhammad Hussain and others" reported as PLD 2019 Supreme Court 504, Hon'ble Apex Court has held:

This vogue ossertion on such o cracial fact would not be of ony legal avail to the appellant, os o mere bold assertion offraad or conceolment would not legally suflice to establish the oppellont?s said claim. MoreoveF, it is by now o settled principle that when a person raises the ground of fraud or concealment to ollege his claim or defend his stance, the some has to be specilicolly pleaded with clear particulaFs. Some of the leoding coses decided by this court ore Ghulam Shabbir v. Mst. Nur Begum ond others (PLD 1977,SC 75)' Izzat Bakhsh v. Nazir Ahmad and 13 others (PLD 1976 SC 508), Faizum alias Toor v. Nander Khan ond others (2006 SCMR 193 1), Akbar Ali Khan ond others v- Mukamil Shah and others (2005 SCMR WP No.2326-P12O77.

431)ond Haji Muhammod Saleem v.

Khuda Bakhsh (PLD 2003 ^SC 315).

Further reliance in this respect may also be placed on the judgment of apex Court given in case of '6Hafiz Malik Kamran Akbar and others Versus Muhammad Shafi (deceased) through LRs and others" reported as PLI) 2024 Supreme Court 262.

6.The application of petitioner was not containing specific details about fraud that might have been committed in the proceedings in civil suit, which included filing of application for withdrawal, recording of statement of Attorney and exhibiting documents of compromise therein.

In absence of such details in respect of alleged fraud in the proceedings of the Court, the application filed under Section l2(2) CPC was not at all maintainable. Learned counsel for petitioners was also asked but he remained unable to explain that why petitioners had remained silent for more than a decade for challenging the order of withdrawal of suit dated O2.O3.2OO1 on 14.01 .2013. In the meanwhile, other two applications under Section l2(2) CPC had also been filed and decided and plea of lack of knowledge on behalf of petitioners has not at all been digestible. The application under Section 1\(2)CPC was also barred by law of limitation WP No.2326Pf2O77,

specifically Article 181 of Schedule-Il of Limitation Act 1908. Learned revisional Court has therefore wrongly interfered in the matter and passed an order, which was not having the support of record of the case. It appears that learned appellate Court had not gone through the record of the case minutely. The requisite grounds for exercise of revisional jurisdiction was not available to the Revisional Court therefore, interference of revisional Court in the matter was not at alljustified. The impugned order was therefore calling for interference of this Court. Resultantly, instant Constitutional petition is allowed, impugned order dated 27.04.2017 of learned Additional District Judge-III, Peshawar is set aside and as a result thereof application of respondents No.l to 8 fited under Section l2(2) CPC stands dismissed.

Announced.

UDGE

(SB)Hon'ble Mr. Justice |ltiqar Ahmad.

"A.Qayum PS"

WP No.2326-Pf2O77.