' MAULVI ANWARUL HAQ, J.---On 10-11-1996 the respondent filed a suit against Hafiz Muhammad Hayat, the father of the petitioners (hereinafter to be referred to as the petitioner). In the plaint, she stated that her marriage was performed with Hafiz Muhammad Hayat on 15-2-1994. The dower entered in the Nikahnama comprised of two kanals of land in Chak No,154/L. Muzaffargarh.
Thereafter, the plaint narrated that the petitioner took an oath on the Holy Qur'an stating that he will give one Square of land in Tehsil Kot Addu and 10 Tolas of gold ornaments as dower. However, on her claim, he got enraged and turned her out. She accordingly sought a decree for dower. In the written statement, it was stated that the Nikah was performed on 20-2-1994 but the respondent did not live with the petitioner as his wife. He also admitted that two Kanals were fixed as dower. He denied the .Allegation regarding one Square of land and 10 Tolas of gold. His further contention was that in lieu of the said two Kanals of land, the respondent received from him the gold ornaments weighing five tolas and four Mashas detailed in para.3 of the written statement. He also stated that he had sent a divorce notice in writing on 18-9-1996 under registered cover A.D. And has also sent a notice to the Chairman, Arbitration Council. On 9-10-1997 the learned trial Court recorded the statement of the petitioner and his learned counsel to the effect that the suit is admitted and he has no objection if it is decreed. On 22-10-1997 the petitioner filed an application in the trial Court stating that in his statement, dated 9-10-1997 he had promised to give two Kanals of land to the respondent and he was called upon to give the particulars of the said land and that he has checked up the Revenue Records and particulars of the said two Kanals of land is Khasra No,123/5/2 Min in Khata No,46. The suit remained pending and it was on 9-2-1998 that it was decreed in favour of the respondent and against the petitioner on the basis of statement, dated 9- 10-1997. According to the learned counsel, Hafiz Muhammad Hayat died on the day following the announcement of the said judgment. The present petitioners, his L.Rs,, filed an appeal. This appeal was dismissed by a learned Additional District Judge, Multan, on 28-3-2000. Thereafter, an application under section 12(2), C.P.C. Was filed on 12-4-2000. It was stated that the petitioner never intended to concede the suit as it is rather, had agreed to give two Kanals of land to the respondent in accordance with the terms of the Nikahnama but somehow the words "as prayed for in the plaint" came to be mentioned. This application was resisted. Following issues were framed:--
(1) Whether the decree obtained, dated 28-3-2000 passed by this Court is without any jurisdiction, production of fraud and misrepresentation?
(2) Whether the petition is not maintainable?
(3) Whether the application is based on mala fide?
(4) Whether the petitioners are estopped to file the present petition?
(5) Relief.
' Evidence of the.Parties was recorded. The learned Additional District Judge, Multan, found Issues Nos. 2, 3 and 4 in favour of the petitioners but answered Issue No,1 against them and dismissed the application on 25-11-2002.
2. Mian Shamasul Haq Ansari, Advocate/learned counsel for the petitioners contends that the learned Additional District Judge failed to take note of the facts apparent on the face of the record and further that he failed to read the evidence which had gone unrebutted. Learned counsel for the respondent, on the other hand, contends that the application under section 12(2), C.P.C., was not maintainable and he relies on the case of Muhammad Ramzan and others v. Civil Judge and others (2003 YLR 2767). According to him, no case for setting aside of the said decree under section 12(2), C.P.C. Stands made out.
3. I have gone through the records of the learned lower Courts. Now I find that after recording the said statement on 9-10-1997, the case was adjourned for further proceedings to 22-10-1997. On this date, the said application was filed stating that two Kanals of land is to be given and further narrating the particulars thereof. The case was adjourned to 7-11-1997 after giving copy to the learned counsel for the respondent for reply. On this date, again it was adjourned to 21-11-1997 for reply. On 21-11-1997 it was adjourned to 9-12-1997 and on this date last opportunity was given for reply. The case was adjourned to 7-1-1998 when the learned Presiding Officer was on leave. It was adjourned to 4-2-1998 when again the Presiding Officer was on leave. However, the case was adjourned by a learned Duty Judge to 9-2-1998 giving last opportunity for reply. On 9-2-1998 following order is recorded on the order sheet:-- {{IMAGE}} {{URDU TEXT}} ' A decree sheet was accordingly prepared. Now the said application is available at page 37 of the trial Court file and there is nothing on the file as to what prevented the trial Court from taking up the said application and deciding the same when so many opportunities were obtained by the respondent to file a reply when none was filed.
4. Now, admittedly, Mr. Abdul Latif Rao, Advocate, represented the petitioner. He filed his affidavit Exh. A.1 (later he was cross-examined with reference to the same). Now after praising Hafiz Muhammad Hayat as a God-fearing person and blessed with knowledge of the Holy Qur'an which he had learnt by heart, he stated that on 9-10-1997 the respondent accompanied by a young Lawyer met Hafiz Sahib in his Chamber and begged him to give her something. It was then agreed that Hafiz Sahib will give two Kanals of land mentioned in the Nikahnama and he got the statement recorded accordingly that he would be having no objection if the suit is decreed in accordance with the terms of the Nikahnama. Hafiz Sahib signed the statement on his asking and he signed it without reading the same because of the longstanding relation of confidence between the Bench and the bar. The Judge then directed Hafiz Sahib to give him the particulars of the said two Kanals of land. He accordingly filed an application on 22-10-1997 containing the said particulars and the date was fixed on 7-11-1997. It was later that he came to know that it came to be mentioned "as prayed in the plaint" instead of "in accordance with Nitahnama". The statement given in response to cross-examination appears to be quite natural. Saadat Iqbal, one of the petitioners appeared as A.W.3. Now the respondent did not enter the witness box to rebut the said evidence and, of course, neither any effort was made to put her counsel in the witness-box.
5. To my mind, the said application filed on 22-10-1997 regarding which not less than six adjournments were granted to the respondent to file a reply go a long way to show the truth of the averments made by the L.Rs, of the late defendant. The evidence has gone absolutely unrebutted.
There is no reason forthcoming on record as to why the respondent who was shown present in Court proceedings did not appear and as to why did not her Lawyer appear in the witness box to rebut the statement of the said Advocate.
6. It is the duty of a Court to record the statement correctly and if it is not done then it is an act which apart from the fact that it is without jurisdiction and without lawful authority, no party can be punished for the same.
7. Now coming to the said contention of the learned counsel for the respondent as to the maintainability, I have gone through the said case of Muhammad Ramzan and others being relied upon by the learned counsel and I find that my learned sister had made the observation keeping in view the peculiar facts of the case before her i.e, a case for recovery of maintenance by a minor child against his father. The same cannot be stretched to a case of instant nature.
8. The civil revision accordingly is allowed. The impugned order, dated 25-11-2002 of the learned Additional District Judge, Multan and consequently the decree passed in the suit filed by the respondent against the predecessor-ininterest of the petitioners on 9-2-1998 as also the proceedings recorded on 9-10-1997 are set aside. The result would be that the suit filed by the respondent shall be deemed to be pending against the petitioners who are, admittedly, the L.Rs, of late Hafiz Muhammad Hayat and shall B be proceeded from the stage where it was. No orders as to costs.
9. A copy of this judgment along with the records of the learned lower Courts be remitted to the learned District Judge, Multan.