Shah Nawaz Khan (lte) through his legal heirs Aziz-Ur-Rehman Vs Gul Khand (Late) through his legal heirs Akber.

V JUDGMENT SHEET

IN THE PESHAWAR HIGH COTIRT,

BAI\NU BENCH

(Judictal Department)

W.P.No.306-812025.

Shah Nawaz Khan (late) through his legal heirs Aziz- ur-Rehman and 06 others.

Versus

Gul Khand (late) through his legal heirs Akbar Khan and 15 others.

Jt]DGMENT

For petitioners: Mr. Muhammad Sadique Khan, advocate.

For respondents: Nemo (in motion).

Date of hearing: 14.07.2025.

,r rrrt

ABDUL FAYAZ, J.-

1.Through this constitutional petition under Article 199 of the Constitution, the petitioners have challenged the legality and validity of the judgment dated 17.03.2025, rendered by the learned Additional District Judge-V, Bannu, whereby he dismissed the civil revision petition of the petitioners and maintained the impugned order dated 01.04.2024 of the learned Civil Judge-IX, Bannu vide which the application filed by the petitioners u/s12 (2) C.P.C was dismissed.

2.The petitioners have invoked Section l2(2) C.P.C. assailing three ex parte decrees dated 20.02.1970 (Suit No. 70ll), 22.06.1994 (Suit No.

105/l), and06.02.1995 (Suit No. 5/1), on the grounds of fraud and misrepresentation. It is contended that their , Shah Nawaz Khan, neither

appeared before the court nor executed any received consideration, transferred

possession, or alienated the property bearing House No. 608/C and Shop No. 26115 situated in Bannu City. The petitioners assert that the impugned decrees came to their knowledge only on26.07.2022.

3.According to the record, the petitioners have assailed three distinct judgments through a single application under Section l2(2) C.P.C. The first suit, No. 7011, concerning the subject property, was instituted on20.02.1970 by Gul Khan (predecessor of the respondents) and culminated in a compromise decree dated 20.02.1970. The second suit, No. 105/1, was filed on 22.02.199a by Haji Dil Nawaz Khan against the legal heirs of Gul Khan, asserting subsequent sale of the same proper{y. This suit was also disposed of through compromise, resulting in a consent decree dated 22.06.1994. Thereafter, Dil Nawaz Khan sold the property to Zia w Rehman,

who filed Suit No. 5/l on 15.01.1995 against Dil Nawaz Khan. This suit too ended in a consent decree dated 06.02.1995. Thus, all three suits were decided through compromise. A preliminary legal issue arises here as to whether multiple decrees can be challenged through a single application under Section 12 (2) C.P.C. Yet a plain reading of the provision reveals that each decree must be challenged independently. Moreover, the first decree dated 20.02.1970 predates the insertion of sub-section (2) of Section 12, which has no retospective effect.

4.A pivotal point raised in the arguments is how Suit No. 70ll was decreed on the very date of its institution. The record reflects that the suit was filed and disposed of through a compromise decree on 20.02.1970. In this regard, Order V Rule I of the C.P.C. is explicif issuance of summons is not mandatory if the defendant appears at the time of filing and admits the plaintifPs claim. Hence, the decree passed on the same date is legally permissible under the said provision.

5.As per the record of Suit No. 70/1, the petitioners' predecessor, Shah Nawaz Khan, appeared before the Court, recorded a compromise statement, and signed the same, resulting in a consent

E decree. Contary to the petitioners' claim in para 4 of the application under Section l2(2) C.P.C, the order sheet dated 20.02.1970 conflrms his presence, while it is well settled thatjudicial proceedings carry sfiong presumption of correctness.

6.The petitioners did not deny that their father passed away in 2022, shortly before filing the application under Section l2(2) C.P.C. Therefore, it raises the question as to why he did not challenge the decrees during his lifetime. Petitioners lack locus- standi to assail the decrees unchallenged by their deceased father himself during his life span.

7.Now, so far as the cont€ntion of learned counsel for petitioner that the trial cour has dismissed the application without framing of issues and recording of evidence, suffrce it to say that in every application filed UlS l2(2) of the Code of Civil Procedure, 1908 it is not of law for the court to frame issue and record evidence unless it appearc that the application does require recording of evidence. Reliance in this respect is placed on the case uMrs. Amina Bibi through her general attornqt v. Nasrullah and others" [2000 SCMR 2961, the relevant portion of the ls as under:-

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L

Be that as it may, while dealing with the allegations under section l2(2), C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held if Amiran Bibi v. Muhammad Ramzan (1999 SCMR 1334).In the instant case, we have gone through the application under section l2(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner under section l2(2), C.P.C., was liable tobe dismissed without formulating issues and recording evidence of the parties."

8.The learned Courts below have tightly appreciated the fact and law to which the petitioners have not been able to point out any illegality, inegularity or jurisdictional defect, as such the instant petition being devoid of merit stands dismissed in liminie.

Announced.

Dt:14.07.2025.

*Imranulloh PS*

JUDGE

(S.B)

Hon'ble Mn Justice Abdul FaYaz stNo