Irfan Jamil Eshai vs Haji Banaras Khan etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR.

JUDICIAL DEPARTMENT

C.R No: 349-A of 2014

JUDGMENT

Date of hearing..............................30.03.2015...........

Appellant(s)/Petitioner (s)......Irfan Jamil Eshai etc.

Respondent (s)......Haji Banaras Khan etc..........

ABDUL LATIF KHAN,J:- Irfan Jamil

Eshai, petitioner, filed the instant revision petition against the judgment and order dated 11.10.2014, passed by the learned Civil Judge-V Abbottabad, whereby the judgment and decree dated 21.10.2010 passed in Suit No.54/1 was set aside and the application filed by the respondent No.1 under Section 12(2) CPC was accepted.

2.The brief and essential facts leading to the present revision petition are that the respondent No.1 filed an application under Section 12 (2) CPC in the Court of learned Civil Judge-V, Abbottabad to the effect that the judgment and decree dated 21.10.2010, passed in favour of the present petitioner, in civil Suit No.54/1 of 2010 is based on fraud and mis-representation with the Court in obtaining the consent decree without impleading the present respondent No.1 as party to the said suit despite of the fact that at that time another civil suit titled Haji Banaras Khan Vs. Mst Sakeena Begum etc was pending adjudication between the parties in the Court of Civil Judge-VI, Abbottabad.

3.Respondents were summoned.

They appeared and submitted their reply.

From divergent pleadings of the parties, the learned trial Court framed six issues. After

framing of issues the parties produce their pro and contra evidence and after hearing of learned counsel for the parties the learned trial Court accepted the application under section 12(2) CPC and the decree dated 21.10.2010 was set aside and the civil suit was restored.

4.I have heard learned counsel for the parties and perused the available record with their assistance.

5.Perusal of the record reveals that respondent No.1/applicant moved an application under Section 12(2) CPC, whereby consent decree passed on 21.10.2010 in favour of the present petitioner against Mst Rasheeda Begum and others, was challenged alleging therein, that the decree has been passed on the basis of fraud and mis-representation. It is evident from the record that the petitioner based his claim on unregistered document dated

29.09.1999 and filed a suit against Mst Rashida Begum etc, who have given cognovit and consent decree was passed.

Admittedly, a suit filed by respondents against predecessor of the present petitioner in the year 1990, regarding almost the same property, which has been decreed in their favour on 05.01.2012. It is pertinent to mention here that after obtaining the consent decree, the petitioner applied to be arrayed as party in suit No.230/1, which was allowed and present petitioner was arrayed as defendant to the suit filed by the respondents on the basis of consent decree, which means that the consent decree has became the subject matter of the suit No.230/1 impliedly if not expressly and the present respondent/plaintiff of Suit No.230/1 was supposed to challenge the consent decree passed in the year 2010 and on the basis of which the present petitioner was

arrayed as party to the suit but they could not challenge the same and instead questioned it through a separate application under Section 12(2) CPC, which is the subject matter of the instant petition.

6.The moot point in this case would be that decree has been granted in favour of the present respondent in Suit No.230/1 on 05.1.2012 against petitioner and their vendors. There was no need to file application under Section 12(2) CPC, against consent decree passed in favour of petitioner for the reason that same cause has been decided between the same parties by the competent Court and as such application is misconceived. The trial Court has not decided the lis with conscious and application of independent mind by ignoring this vital aspect of the case as the respondent/plaintiff in Suit No.230/1 has questioned the title of the petitioner and

their vendor regarding almost the same property in the suit and cannot file application under Section 12(2) CPC at the same time against the consent decree passed in favour of the petitioner in the year 2010. It is also pertinent to mention here that the appeal has been filed by the present petitioner against the decree passed in favour of the plaintiff in Suit No.230/1 and in case the application under Section 12(2) CPC is allowed, there is every possibility of contradictory findings by both the Courts.

Needless to mention that agreement between the parties and consent decree has no binding effect on the present respondent and as such they could not file suit as well as application under Section 12(2) CPC simultaneously when the parties are the same, subject matter almost the same and would amount to double jeopardy. If decree passed in favour of respondent remained

intact there remains nothing to be adjudicated in subsequent proceedings by the Court in the instant proceedings. The findings arrived at by the lower Court on acceptance of application under section 12(2) CPC is in disregard of law and are the result of misreading and non-reading of the available record, law besides.

7.For the aforesaid reasons, without touching merit of the case, lest it prejudice the case of either side, the present revision petition is allowed, set aside the impugned orders/judgments of both the Courts below and dismissed the application under Section 12(2) CPC being not maintainable.

Announced:

JUDGE