Gul Shad vs Royedad etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R. No.135-M/2013.

JUDGMENT

Date of hearing: 20.8.2014.

Petitioners: ( Gul Shad) by Mr. Parviz Khan, Advocate.

Respondent: ( Royedad) by Mr. Shamsul Hadi advocate. Respondent No. 2 placed Ex- parte LAL JAN KHATTAK, J.- This revision petition under Section 115 CPC is directed against the judgment and decree dated 28.01.2013 of the learned District Judge/Zilla Qazi, Buner at Daggar, whereby appeal of the petitioner, against the judgment and decree dated 15.12.2011 delivered by the learned Civil Judge/Illaqa Qazi-I, Buner at Daggar, has been dismissed.

2.Short facts of the case are that the respondent No.1 had filed a suit against the petitioner and respondent No.2 for declaration, specific performance of a verbal agreement and cancellation of gift mutation No.250 attested on Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]

30.9.1994 in respect of the landed property detailed in the heading of plaint (hereinafter to be referred as the suit land). According to the averments of plaint, the suit land was owned by the respondent No.1 who alienated the same to the respondent No.2 by way of gift with some conditions. It was further averred in the plaint that subsequently respondent No.2 transferred a portion of the suit land to the petitioner. It was the respondent-plaintiff’s case that as the respondent No.2 has refused to give him the suit land back, therefore, he has filed the instant suit against him as well as against the petitioner. The suit was contested by the petitioner by filing his written statement wherein he pleaded that he has purchased portion of the suit land from the respondent No.2 through deed executed on 24.12.2003 for sale consideration of Rs:50,000/-.

3.Case record reveals that the

respondent No.1 during pendency of his suit moved an application before the trial Court for deletion of the petitioner’s name, who was defendant No.2, from the column of defendants for his being an unnecessary party to the suit. This Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]

application was allowed by the learned trial Court on 19.12.2006 and the petitioner’s name was deleted from the suit as defendant. Record further shows that thereafter, on 20.6.2007, the respondent No.1-plaintiff and respondent No.2-defendant compromised with each other as a result of which suit of the respondent No.1 was decreed as prayed for on 20.6.2007. This decree was assailed by the petitioner through an application under section 12(2) CPC but his this application was dismissed by the learned trial Court on 15.12.2011. Petitioner impugned the dismissal of his application in appeal but that too was dismissed by the learned appellate Court vide judgment and decree dated 28.01.2013, hence the instant revision petition.

4.Arguments heard and record gone

through.

5.Thorough and careful examination of the record would reveal that in the plaint the respondent No.1-plaintiff has averred that the respondent No.2 after getting the suit land from him had transferred with possession some portion in the suit land to the petitioner. In reply to the averments of plaint, the petitioner took up the plea Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]

that he has purchased some of the suit land from the respondent No.2 through sale deed dated 24.12.2003 for consideration. In order to prove such plea the petitioner produced and examined seven witnesses. He himself appeared as PW-4 and deposed that he had purchased the suit land through sale deed Ex. PW 4/1 against a sum of Rs:50,000/- which is in his possession and over which he has raised construction etc. Scribe of the deed appeared before the Court as PW-2 and supported the deed Ex. PW 4/1. One Muhammad Zada appeared before the Court as PW-5 and deposed that in his presence the respondent No.2 had received Rs:50,000/- from the petitioner.

Likewise Meer Baz, a marginal witness of the deed Ex. PW 4/1, appeared before the Court as PW-6. He also supported the alienation of sale made by the respondent No.2 in favour of the petitioner.

6.Narration of the above referred

evidence would show that the petitioner has prima facie valuable rights and lawful interest in the suit land and he was necessary party to the suit.

Even initially he was so arrayed as defendant No.2 Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]

by the respondent No.1 in his plaint but later on for no good legal reasons and grounds he was deleted from the panel of defendants and that too on the written application of the respondent No.1. This application for deletion of the petitioner can be termed as a fraud and misrepresentation having been committed by the respondent-plaintiff upon the Court. Furthermore, such fraud of the respondent was augmented when he obtained a compromise decree in his favour from the respondent No.2 which was in respect of the property purchased by the petitioner and possessed by him as well.

7.A look of the petitioner’s evidence would show that he has lawful interest in the suit land and he was legally entitled to defend his such lawful interests in the suit land. The appreciation of case evidence by the Courts below too is not legal and proper as no issue was framed by the learned trial Court regarding the evidential worth and admissibility or otherwise of Ex. PW 4/1.

Furthermore, while deciding an application under section 12(2) CPC, a Court of law is not required to go into a deep appreciation of a particular Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]

document produced and relied upon by either of the parties to the suit as the same exercise would ultimately be undertaken by the trial Court in case application under section 12(2) CPC is accepted.

For deciding the issue of setting-aside a decree allegedly obtained through fraud and misrepresentation, a tentative assessment of the available material would be made as principles and considerations of appreciation of evidence in a regular suit and application under section 12(2) CPC are not the same but are altogether different.

8.The petitioner through his oral as well as documentary evidence has amply proved his case that the decree dated 20.6.2007 was obtained by the respondent No.1 through fraud and misrepresentation with intent to deprive him of his valuable property. Both the Courts below, in estimation of this Court, have fallen in legal error by dismissing the application and appeal of the petitioner. Therefore, I accept the instant revision petition and set aside both the judgments and decrees of the Courts below and direct the learned trial Court to decide the suit of the Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]

respondent No.1 on merit after providing proper opportunity of defence to the petitioner.

Announced.

Dt: 20.8.2014. JUDGE

Kifayatullah/PS* [CR No.135-M/2013 ‘Gul Shad V. Royedad’/D]