' On 2-11-1996 the petitioner filed a suit against respondent No,1, his brother. According to him he is a simple illiterate person and unmarried and as such heavily dependent upon his brothers including the respondent. He complained that whereas he never made any gift of his property to respondent, he managed to get gift deeds executed and registered on 13-6-1995. For the reasons stated in the plaint he sought a decree that he is owner in possession of the suit property comprising 1/3rd in a house as also two shops and said gift deeds are illegal and void. Respondent No,1 was served and he put in appearance and filed a written statement on 25-1-1997 in Court. He made a positive assertion that the petitioner had voluntarily made a valid gift of the suit property in his favour.
2. The case was adjourned to 3-3-1997. Before. The said date on 17-2-1997 the petitioner himself while respondent No,1 and his learned counsel appeared before the learned Duty Judge. The statement of the petitioner was recorded to the effect that a compromise has been arrived at and as a result of that he withdraws the suit and that he had gifted the property to his brother for said relationship. The case was adjourned by the Duty Judge to 19-2-1997 for orders. On this date following order was passed by the learned Civil Judge:-- ' "Dated: 19-2-1997 Presence as before. In the light of statement of the plaintiff the suit is dismissed as withdrawn due to compromise. Parties would bear their own cost. File be sent to the record room."
3. On 3-3-1997 the petitioner filed an application stating that a fraud has been played upon him in the matter of recording of said statement and suit be restored. The learned Judge passed an order that let the petitioner produce medical evidence regarding his mental state. It is not apparent on the record as to what became of the said application.
4. On 25-2-1999 the petitioner filed an application under section 12(2), C.P.C. He stated that his brother took him to the Court of Duty Judge on 17-2-1997 by representing that his property will be returned to him and his signatures were accordingly obtained. It was on 3-3-1997 that he came to know as to what had happened. He accordingly prayed for setting aside of said proceedings and order. In his reply respondent No,1 asserted that the petitioner out of his own free wil4 had made the statement on 17-2-1997 as a result whereof the suit was dismissed as withdrawn on 19-2-1997. It was also stated that other brothers have instigated the petitioner to file this application. It was also stated that an application was earlier filed on 1-3-1997 which remained pending till 25-2-1999. It was further stated that the suit was adjourned to 3-3-1997 but a compromise was effected between the parties as a result whereof the petitioner came to Court on 17-2-1997 and made an application that his suit be dismissed by way of a compromise. Learned trial Court dismissed the application summarily on 14-12-1999. A revision filed by the petitioner was dismissed by a learned Additional District Judge, Rawalpindi, on 17-2-2001.
5. Learned counsel for the petitioner contends that in the circumstances of this case it was incumbent upon the learned trial Court to hold an inquiry after framing an issue and giving the petitioner a chance to lead evidence.
6. Mr. M. Amin Jan, learned counsel for respondent No,1, on the other hand, cites the judgment in the case of Nazir Ahmad v. Muhammad Sharif and others 2001 SCM R 46 to urge that the learned trial Court was not under obligation to frame an issue.
7. There can possibly be no cavil with the said contention of the learned counsel for respondent No,1 . However, at the same time Honourable Supreme Court has expressed. In appropriate cases, need for an inquiry in application of instant nature. Reference be made to the case of Mrs. Esmeraida Concaicao Bertha Podrigues Da Costa through attorney v. Sabir Hussain and another 2001 SCM R 1522.
8. Now I have already narrated above the history of this case.
' Admittedly the petitioner is an unmarried person. Respondent No,1 is his brother. The suit was filed to challenge gift deeds whereby his property was got transferred in favour of respondent No,1, on the ground that he had not made such a gift. It is matter of record that he had engaged a counsel in the suit. The case was taken up on a date before a Duty Judge before the date fixed. He appeared without his counsel when statement was recorded. A bare look on the order passed by the learned trial Court on 19-2-1997 would show that in all probability it had not even cared to read the proceedings that had taken place in such an unusual manner on 17-2-1997. In the said circumstances the petitioner was entitled to an opportunity to lead evidence to show as to how his statement was got recorded in the said manner resulting in the dismissal of his suit. The learned trial Court has simply stated that a,perusal of the statement of the petitioner would show that he appeared in Court and got the statement recorded. The learned Additional District Judge has followed suit. To my mind, this is rather a callous approach. The writ petition, accordingly, is allowed. The impugned orders are declared to be without lawful authority and are set aside. The result would be that the application filed by the petitioner shall be deemed to be pending before the learned Senior Civil Judge. Rawalpindi, where the parties shall appear on 17-11-2003. The learned Senior Civil Judge shall requisition the record, frame issues arising out of the application and reply filed by respondent No,1 and after giving an opportunity to both the parties to lead evidence, to decide the application in accordance with law on its merit. No order as to costs.
' A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Rawalpindi.