' Shortly narrated the facts giving rise to the filing of instant civil revision are, that Akbar Said Khan and others, plaintiffs instituted suit on 18-1-1996 against Bakht Muhammad Khan and others, defendants, claiming a declaration to the effect that plaintiffs were owners of the disputed property by virtue of purchase and defendants had no justification to interfere in their ownership rights. The plaintiffs also prayed for grant of permanent injunction restraining defendants to interfere in their rights. In the alternative, the plaintiffs also prayed for possession of the disputed property through demolition of shops/cabins constructed thereon. The suit was contested by the defendants on all grounds, legal as well as factual and the claim of the plaintiffs was totally denied.
2. It is discernible from the record that on 20-11-1997 defendants 4 to 14 agreed that if Shahzad Fatahul Mulk takes oath on the Holy Qur'an to the effect that he is the owner of the disputed property and that he has sold the same to the plaintiffs, claim of the defendants 4 to 14 will be withdrawn. Shahzada Fatahul Mulk appeared in the Court and took an oath to the aforesaid effect on 20-11-1997, vide order sheet No,33 and hence the suit was decreed in favour of the plaintiffs by the learned trial Court. An appeal was preferred thereagainst before learned District Judge, Dir, which was dismissed.
3. During the proceedings, Mst. Shaheen, wife of Mohibullah, Inamullah son of Mohibullah and Mst.
Gule Sardara, wife of Shereen, moved and application under section 12(2), C.P.C. To the effect that the judgment and decree, dated 20-11-1997 is based on misrepresentation and fraud and collusion and they are not bound by the same. The learned trial Judge after receiving reply to the said application, dismissed 'the same by his order dated 20-7-2000 in limine. An appeal was preferred against the aforesaid order which was accepted by learned Additional District Judge, Dir by his order dated 15-1-2001. The impugned order dated 20-11-1997 was set aside and the matter was remanded to the trial Court with direction to decide the same afresh after framing issues and providing an opportunity to the parties to adduce evidence in support of their IA respective contentions.
4. Mr. Jan Muhammad Khan, Advocate, learned counsel for the petitioners, vehemently contended that the impugned judgment of the lower Appellate Court is illegal and is against the facts of the case. The application under section 12(2), C.P.C. On the face of it was frivolous and filed collusively with ulterior motive and that the learned trial Judge had justifiable reasons to dismiss the same in limine without framing issues and providing a chance to the parties to adduce evidence.
Elaborating the arguments, the learned counsel submitted that Mst. Shaheen and others, have got no right to file an application under section 12(2), C.P.C. Mohibullah husband of Mst. Shaheen had made an application against the Shahzadgan of Chitral for partition with regard to the disputed property in the Court of Assistant Commissioner, Wari on 31-7-1990, which was processed thoroughly and after report of the Tehsildar, the same was rejected, vide order dated 6-12-1990 and no appeal was lodged against this order. The learned counsel added that as the claim of late Mohibullah was rejected in favour of Shahzadgan of Chitral in respect of the disputed property, so now Mst. Shaheen cannot claim again the disputed property and she has not come to the Court with clean hands. In this regards reliance was placed on Mst. Nasira Khatoon and another v. Mst.
Aisha Bai and 12 others 2003 SCM R 1050 and Messrs Dadabhoy Cement Industries Ltd. And 6 others v. National Development Finance Corporation, Karachi 2002 SCM R 1761.
5. Contrarily, learned counsel for the respondents supported the impugned judgment and decree of the Appellate Court and prayed for its sustenance.
6. No procedure has been prescribed for the determination of an application under section 12(2), C.P.C. Nor is any separate remedy indicated against such determination. Where the application is presented, evidence in support and rebuttal of the contents of the application will have to be led, unless the application is not bona fide. In the instant case, Mst. Shaheen widow of Mohibullah, was not impleaded as a party to the earlier round of litigation, whereby the suit was decreed in favour of the plaintiffs, by the trial Court on the basis of oath taken by Shahzada Fatahul Mulk. Having adjudged the matter from all angles,, I find that the learned Appellate Court was quite justified to accept the appeal and remit the matter to the trial Court for fresh decision after formulating issues and providing a fair chance to the parties to lead evidence in support of their contentions.
Allegations of fraud can only be established by an elaborate inquiry. An Appellate Court can transmit the proceedings for the recording of evidence and findings to the trial Court. By way of relief, the Court can either set aside the decree or grant any other appropriate relief. There is nothing on the file to indicate that the application under section 12(2), C.P.C. Was filed collusively with no other purpose but to add to the agonies of the petitioners. The mere fact that some of the relatives of Mst. Shaheen were party to the previous litigation, by itself, constitutes no bar in the way of Mst. Shaheen for filing an application under section 12(2), C.P.C. The case-law cited by learned counsel for the petitioners is distinguishable and proceeds on different facts. It is of no help to the petitioners.
' In the result and for the foregoing reasons, finding no substance in this civil revision, I dismiss the same, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.