' MAULVI ANWARUL HAQ, J.- On 3-6-1980 Mst. Sakina Begum, the predecessor-in-interest of the petitioners filed a suit against Muhammad Hanif respondent No.l and Siraj Din, the predecessor-in- interest of respondents Nos.2 to 10. The subject-matter of this suit was land measuring 14-1/4 Kanals with the following details:-
(a) 2-1/4 Kanals in Square Nos. 11 Killa No.7/2.
(b) 12 Kanals in Square No. 11 Killas Nos. 18 and 19/2.
' In the first instance, the said Siraj Din got recorded his statement (Exh.R.13) to the effect that he has no objection if the suit is decreed to the extent of said 2-1/4 Kanals of land. On 15-8-1983 Muhammad Hanif respondent No.l filed an application requesting the Court to summon the file of the suit and to record his statement. The file was accordingly summoned and the statement of respondent No. 1 was recorded to the effect that he has no objection if the suit is decreed against him. The suit was accordingly decreed and decree sheet Exh.R.l was drawn up.
2. On 27-11-1983 the respondent No.l filed an application under section 12(2), C.P.C. For setting aside of the said decree. The application was resisted by the said Mst. Sakina Begum while Siraj Din also filed a reply praying that the application be dismissed. The learned trial Court framed issues. The evidence of the parties was recorded. The application was dismissed on 20-12-1993. A revision filed by the respondent No.l was allowed by a learned A.D.J., Sargodha, on 28-6-2001 who proceeded to set aside the order of the learned trial Court and to remand back the case for a fresh decision after framing an issue about question of jurisdiction of the learned trial Court during summer vacations regarding the disposal of the suit.
' This was done vide impugned order dated 28-6-2001.
3. Sh. Naveed Shehryar, Advocate/ learned counsel for the petitioners contends, with reference to the relevant Rules of this Court, that there is absolutely no bar upon a trial. Court to take up a regular suit with the consent of the parties during the summer vacations and to dispose of the same. His further contention is that the learned A.D.J. Without even referring to the findings recorded by the learned trial Court on issues framed after recording evidence of the parties has proceeded to set aside the said order. According to him, the impugned Order is without lawful authority. Malik Muhammad Akram Khan, Advocate/ learned counsel for the respondent No.l objects that the writ. Petition is not competent as it proceeds against an order passed in a revision.
According to him,' there is a bar under the law upon a Court to decide a suit finally during the vacations. Raja Ghulam Hassan, Advocate, when confronted with the said conceding statement and the said prayer made by Siraj Din, the predecessor-in-interest of his clients has not much, to say to oppose this written petition.
4. I have gone through the copies of the records, appended with this writ petition, with the assistance of the learned counsel for the parties. I have examined the application.Filed by the respondent No.l. In para.4 of the application, it was stated that the husband of the said Sakina Begum is an Advocate practising at District Courts, Sargodha . And is a clever person. He approached respondent No.l through Muhammad Khalid and Malik Muhammad Sarfraz to effect a compromise. On Begum promised to transfer 12 Kanals of land in Square No. 11 Killas 4 and 5 in lieu of the suit-land and then 'it is abruptly stated that he obtained the decree by fraud in favour of his wife. In para.5 it is stated that after decree, the said lady refused to transfer the said alternate land to the respondent No.
1. It was also stated that although the case was fixed for 7-9-1983 yet the husband of Sakina Begum got his statement recorded on the very next day. In para.7 it was stated that the deceased-lady and her husband were called upon to transfer the said land but they have refused. Hence the application is being filed. In para.9 it was stated that he is still ready to accept the alternate land.
A.Plain reading of the said application would show that a case falling under section 12(2), C.P.C.
Was .Not at all made out. I may reproduce here the following excerpt from the statement of Muhammad Hanif respondent No.l AW-3 when he was confronted with the application filed by him and the statement made by him. {{URDU TEXT}}
5. So far as the said allegation regarding the transfer of alternate land in lieu of the suit-land is concerned, oral evidence was led which was duly rebutted by the petitiojiers. The learned trial Court, therefore, had very correctly came to the conclusion that a case of fraud or misrepresentation has not been made out and the learned trial Court further correctly observed that if at all the respondent No.l has a cause of action he should file a suit for performance of the said alleged oral agreement. . The learned A.D.J. In his impugned order has not at all adverted to the said circumstances glaring on the face of the record while passing the impugned order.
6..This brings me to the contentions raised by the learned counsel. It is true that normally orders passed in revisional jurisdiction in matters arising out of civil proceedings are not to be interfered with in exercise of constitutional jurisdiction. However, the fact remains that in case this Court reaches the conclusion that the order passed in exercise of said revisional jurisdiction falls within the mischief of Sub- Article 2(a) of Article 199 of the Constitution, it can set aside the same. In view of what has been stated above by me after examining the said application and the statement of respondent No.l. The impugned order is wholly void. To my mind, it has been passed without even reading the said application and the said statement of respondent No.l. As observed by the learned trial Court it was at the most a case of violation of a term of a compromise and section 12(2), C.P.C. Does not cater / for enforcement in case of breach of terms of compromise. Reference be made to the case of Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65.
7.. So far as the contention regarding the disposal of the suit on 15-8-1983 i.e. During the Summer Vacations is concerned, the learned counsel has not been able to point out any law or Rules which have been violated by the learned trial Court and same is the case with the impugned order of the learned A.D.J. Sh. Naveed Shehryar, Advocate, has drawn my attention to Chapter-!, Volume-I of the Rules and Orders of this Court generally dealing with sitting and working hours of civil Courts.
Rule 3 deals with the holidays while Rule 4 provides for taking up cases on holidays. I deem it appropriate to reproduce the said Rule 4 hereunder:- "4. Taking up cases on holiday. - Civil suits and appeal ought not, as a rule, to be taken up during the vacation or on a holiday, but any Civil suit or appeal may be legally heard, by consent of the parties, during the vacation or on a holiday, if the Presiding Officer of the Court thinks it expedient, for any reason, to keep his Court open for the purpose."
' There is no denial on record that the case was not taken up by the learned trial Court with the consent of the parties on 15-8-1983. Thus, the mere fact that the case was taken up with the consent of the parties during the summer vacations and disposed of in accordance with their statements would not at all render the said judgment and decree to be coram non. Judice or void.
8.This writ petition is accordingly allowed. The impugned order dated 28-6-2001 of learned A.D.J., Sargodha, is declared to be void and without lawful authority and is set aside. The result would be that the order passed by the learned trial Court on 20-12-1993 shall remain in the field. No orders as to costs.