MUHAMMAD MUZAMMAL KHAN,. J. --- Instant Constitutional petition challenged the judgments/decrees dated 29.6.1995 and 16.5.2000 passed by the learned Civil Judge and that dated 18.7.2000 returned by the learned Additional District judge, Gujranwala to be declared illegal, void and of no legal consequence, whereby suit of respondent No. 1 was decreed ex parte, petitioner's application under Order IX, Rule 13 and her civil revision were dismissed, respectively.
2. Succinctly, relevant facts are that the petitioner and respondent No. 1 are real sister/brother and they on death of their father Haji Muhammad. Sadiq, inherited its commercial properties, as well as agricultural land situated in Revenue Estate of Village Girjhak, District Gujranwala. The propositus died on 23.3.1973 and was succeeded by three sons and four daughters. The properties left by him, were inherited by his all the heirs according to their respective Sharai Shares. Respondent No. 1 filed a suit for declaration with permanent injunction on 28.11.1987 averring that the petitioner was owner in possession of land measuring 23 kanals and 17 marlas equivalent to 7/32 share out of 254 kanals and 8 marlas, which was allegedly sold by her to respondent No. .1 through oral agreement to sell.
Respondent No. 1 prayed that he may be declared owner in possession of the property allegedly transferred by the petitioner and she may be restrained from interfering in his possession by any means whatsoever.
3. Some counsel on behalf of the petitioner filed concessional written statement in the suit filed by respondent No. 1 and on the basis of statement of the learned counsel for the parties, suit was decreed vide judgment/decree dated 13.12.1987. The petitioner claimed that she was not served in the suit; did not engage any counsel and did not instruct any body to make concessional statement on her behalf in the suit filed by respondent No. 1. According to her, she on gaining knowledge of the decree applied for certified copies thereof and moved an application 'under Order IX, Rule 13, C.P.C. Respondent No. 1 contested the application filed by the petitioner under Order IX, Rule 13, C.P.C. But ultimately the same was accepted vide order dated 14.5.1992.
4. Respondent No. 1 aggrieved of the order dated 14.5.1992 filed a revision petition before the learned Additional District Judge; Gujranwala but remained unsuccessful as the same was dismissed as withdrawn, on 3.4.1994.
5. Since suit filed by the respondent No. 1 had revived he wherein he filed application under Order VI, Rule 17, C.P.C. Praying its conversion into suit for specific performance of the oral agreement. It so appears to have happened that the petitioner again absented which resulted into an ex parte decree against her on 29.6.1995.
6. Respondent No. 1 after getting ex parte decree, went in its execution and the executing Court directed notice to the petitioner through telegram on her residential address at Lahore, as she was permanently living at her address of Lahore given in the title of instant petition. This time she filed an application under section 12(2), C.P.C. On 24.10.1998 asserting that she gained knowledge of the ex parte decree on 20.11.1997 on receipt of telegraphic notice from the executing Court. The petitioner pleaded in her application under section 12(2), C.P.C. Fraud/misrepresentation qua the Court, exercised by respondent No. 1.
7. Respondent No 1 in response to notice on application under section 12(2), C.P.C. Filed by the petitioner, appeared before the Trial Court and filed an application under Order VII, Rule 11, C.P.C.
Praying rejection of an application filed by the petitioner. The learned Civil Judge seized of the matter after getting reply in the application under Order VII, Rule 11, C.P.C., accepted the same and dismissed the application filed by the petitioner vide order dated 16.5.2000.
8. The petitioner aggrieved of the judgment/oraer passed by the Trial Court, filed a revision petition before the learned Additional District Judge, but remained unsuccessful, as the same was dismissed on 18.7.2000. She, C.L.R. thereafter, filed instant Constitutional petition with the relief noted above, which was admitted to regular hearing and after completion of record has now been fixed for final hearing. Respondent No. 1. In response to notice by this Court, has appeared and was represented through his counsel.
9. I have heard the learned counsel for the parties and have examined the record, appended herewith. It is admitted between the parties that they are real sister/brother and no transfer deed, agreement or receipt was ever executed by the petitioner who is married and is permanently living at Lahore, for transfer of her share in the joint property left by her father located at Gujranwala. It is also not denied by respondent No. 1. That he had moved an application praying amendment of his plaint for declaration/permanent injunction for its conversion into suit for specific performance of the alleged oral agreement to sell with the petitioner. Record revealed that the petitioner was proceeded against ex parte on 22.1.1995. Petitioner's stance in her application under section 12(2), C.P.C. Was that she did not engage any counsel in the suit and did not appear/join the .Proceeding before the Trial Court, earlier to the ex parte decree dated 29.6.1995' sought to be adjudged by her.
The learned Trial Judge seized of the matter on application of the respondent No. 1 under Order VII, Rule 11, C.P.C. Took up both the matters simultaneously and rejected application under section 12(2), C.P.C. Summarily. Application under section 12(2), C.P.C. As it stood did disclose a cause of action and was not barred by any law thus the same could not have been rejected by invocation of provisions of Order VII, Rule 11, C.P.C. Remedy of challenging a' ecree on the basis of fraud, misrepresentation or lack of jurisdiction under section 12(2), C.P.C. Was provided in place of a separate suit and was to be tried in-the same manner. Assertions made in the application did make out a case of fraud/misrepresentation qua the Court and the controversy could not be put to rest without recording of evidence. Assuming for the take of C.L.R. arguments that claim of petitioner in her application if ultimately is found to be correct that she did not engage any counsel or she did not appear/join proceedings after setting aside of ex parte decree dated 29.6.1995, the mischief ofthe provision of law under discussion, was fully attracted but the Trial Court illegally opted to reject her application summarily. None of the respondents Nos. 2 and 3 attended to the grievance of the petitioner that proceedings before the Trial Court earlier to passing of decree dated 29.6.1995 were not being, conducted, awaiting decision of the Revisional Court approached by respondent No. 1 against the order whereby petitioner's application under Order IX, Rule 13, C.P.C. Was accepted.
10. Petitioner had specifically pleaded in her application under section 12(2), C.P.C. That original record of the Trial Court had been summoned by the revisional Court and the matter was being adjourned by the Trial Court on a "Parcha Yadashat". Record of the Trial Court tentatively supported the stance of the petitioner, as the case was adjourned sina die on 14.12.1993 on this account.
Proceedings thereafter, were resumed on 13.4.1994 on receipt of file from the revisional Court but no body appeared' for the parties and notices were ordered to be issued to their counsel. Likewise the order dated 23.6.1994 shows that case was taken in earlier part of the day but on account of - absence of the parties/counsel, it was kept in waiting. On the same day, in the latter part of the day the learned counsel for respondent No. 1 appeared and application of the petitioner under Order IX, Rule 13, C.P.C. Which had already been accepted, was dismissed due to absence of the petitioner.
Trial Court at the same time realizing that fact, passed another order of summoning of original file and marked presence of the learned counsel forthe petitioner. This order is not only confused but also depicts that the petitioner. This order is not only confused but also depicts that the petitioner was not personally served and instead presence of her earlier counsel was marked by the Trial Court.
11. Petitioner's earlier application under Order IX, Rule 13, C.P.C. Had been accepted primarily on the ground that she was not served in the suit and had not appointed any counsel to concede the suit on her behalf. This order had become final by withdrawing of revision petition filed by respondent No. 1 and in its presence, one fails to understand, how notice to the same counsel was opted to be issued and how his presence was again marked without notice/concurrence of the petitioner. Under law, on receipt of file from the revisional Court, notice should have been issued to the petitioner, instead of her counsel who was already held to have no authority to appear on behalf of the petitioner. Relevant portion of the judgment dated 14.5.1992 is reproduced for convenience:--- "I have also perused the original plaint, written statement and order dated 13.12.1987 passed by my learned predecessor, original plaint shows that disputed land no date of oral sale was mentioned in the plaint. No consideration amount was given. So in . The eye of law, Agreement with no consideration is void. Suit was instituted on 29.11.1987 and was decreed on 13.12.1987. The version of the petitioner is proved by the evidence of the respondent. The net shall result of the above discussion is that the petitioner had not given any Vakalatnama to the respondent. The respondent fraudulently appointed Ejaz Nazar Shekh, Advocate on behalf of the petitioner and submitted written statement and written reply fraudulently. The petitioner never signed upon the written statement and written reply. The respondent obtained decree in a suit for declaration by way of fraud and forgery at mis-representation. The petitioner has proved this issue. Hence this issue is decided in favour of the petitioner and against the respondent."
(Underlining is mine, to highlight relevant part of earlier judgment).
12. None of the'Courts below bothered themselves to have a glance on the record according to which original file of the suit was received by the Court of first instance, from the record room on 7.9.1994 when respondent No. 1 filed an application for amendment of his plaint, praying its conversion to a suit for specific performance of the asserted oral agreement to sell. Reply to this application was not filed \ by the defunct counsel whereas her right of defence was closed on 22.1.1995. Trial Court appears to have accepted the application under Order VI, Rule 17, C.P.C.
Unilaterally on 14.2.1995. Prima facie, after filing of amended plaint. By respondent No. 1 no effort was made to secure service of the petitioner because counsel who had been posing himself as her counsel, also stopped appearance after 22.1.1995.
13. No effort was made by any of the Courts below to look into the order of striking off defence which, was apparently passed on an application under Order VI, Rule 17, C.P.C. Filed by respondent No. 1, on account,of non-filing of reply thereto which could not ensure to exclude the petitioner in the suit, after filing of amended plaint. Out of proceedings of the suit, the most sparkling' thing was that after setting aside/re-call of ex parte decree vide order/judgment dated 14.5.1992, petitioner was not required and never joined proceedings before the Trial Court and this fact had to be decided by the Trial Court with due deliberations to be made on the basis of its record. All these observations have been deliberately made tentatively as I intend to remand this case back to the Trial Court lest any observation by this Court may not prejudice the decision by the Court to whom the case will ultimately be entrusted for decision. In the circumstances of this case, summary rejection of application, under section 12(2), C.P.C. Was not at all justified. Especially when the petitioner was not much literate; was a housewife; was living at Lahore; was real sister of respondent No. 1 who was apparently hunting for her property. Daring the hearing by this Court, the learned counsel for respondent No. 1 could not justify the impugned order. The petitioner, as a matter of fact was condemned unheard and she was not given any opportunity to substantiate her case set up in her application under section 12(2), C.P.C. By leading evidence. She has been deprived of her proprietary rights in haphazard manner and the course adopted by both respondents Nos. 2 and 3 cannot be' justified on the touch stone of any canon known for administration of justice.
14. For the reasons noted above, both the judgments/orders dated 16.5.2000 and 18.7.2000 passed by respondents Nos. 2 and 3 being illegal/void, are not sustainable at law, thus the same are declared to be so, by accepting instant petition and writ as 'prayed is issued, with the result that application under section 12(2), C.P.C. Filed by the petitioner shalt be deemed to be pending before the Trial Court which shall be decided afresh in accordance with law: Parties are directed to appear before the learned District Judge, Gujranwala on 18.5.2006 for entrustment of the case to any learned Civil Judge for its decision, as rioted above. There will be no order as to costs.