' MAULVI ANWARUL HAQ, J.---On 30-1-1984 the petitioner (Sabir Hussain deceased represented by L.Rs) filed a suit against respondents Nos.1 and 3. In the plaint, it was stated that the total land of which the suit land is a part was granted to Sarwar Khan who had deposited the price in the State Treasury. However, a conveyance deed has not been executed in his favour and the respondent No,1 is continuing as owner in possession of the suit land forming part of the same grant. It was then stated that Raja Ghulam Hussain the attorney and brother of respondent No,1 agreed to sell her share equal to 54 Kanals of land in favour of the petitioners on 1-1-1984 by means of an oral agreement for a consideration of Rs,1,00,000. He received an earnest of Rs,81,000 and promised to transfer the land within 15 days upon receipt of the balance. However, the respondent No,1 and her said attorney have refused to perform their part . Of the contract. According to the petitioner,the Hisadari possession of the Khasra numbers mentioned in Para 5 of the plaint had been delivered to him. It was also mentioned that Sarwar Khan, the actual grantee had been permitted by the Collector, Sargodha, on 27-3-1945 to sell 554 Kanals and 3 Marlas of land. With these averments, a decree for specific performance of the said oral agreement dated 1-1-1984 was prayed for. On 4-2- 1984 a written statement was filed on behalf of the respondent No,1 lady through Raja. Ghulam Hussain attorney admitting the said suit and praying, that the suit be decreed. The respondent No,3 (Provincial Government) also filed a written statement. It was objected that the petitioner has no cause of action. The civil Court cannot entertain the suit in view of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. On merits, it was stated that the actual grantee of the land was Muhammad Ayub Khan. His son Raja Muhammad Yousaf filed an application and was permitted to deposit the price of the land for conferment of proprietary rights at the rate of Rs,44 per Acre. However, the grantee did not make the deposit in time. In the year 1946, the grantee again made an application for the deposit of the price which was temporarily allowed on 12-111946. The amount was actually deposited on 4-6-1969 whereas the time had elapsed in the year 1946 and it was for this reason that no conveyance deed was executed. The respondent No,1 had purchased the occupancy rights of 54 Kanals of said grantee vide mutation No,306 and she is also not the proprietor. She had filed an application on 5-12-1983 for conferment of proprietary rights which was being processed when the suit was filed. It was also pointed out that whereas the lady is holder of occupancy rights of 54 Kanals, prayer has been made for transfer of 126-1/4 Kanals. It was accordingly prayed that the suit be dismissed. On 23-7-1984 the learned trial Court framed issues on the basis of the said pleadings. The case was being adjourned for evidence of the petitioner.
According to the order sheet on 3-11-1985 the case was adjourned to 2-3-1986 by way of last opportunity to the petitioner to produce his evidence. On this date the learned Civil Judge was on leave. Somehow or the other the learned District Judge, Sargodha (Malik Lutaf An) summoned the file, withdrew the case from the said learned Civil Judge and placed it on his own file. A notice was ordered to be issued to the respondent No,3 for the said date. Again, for some reason while the case had already been transferred to his own file by the said learned District Judge, an application was filed by the petitioners stating that the case is being prolonged unduly and it should be tried by the learned District Judge himself. On 4-5-1986 the said learned District Judge again passed an order withdrawing the file from the Senior Civil Judge and placing it on his own file. On 5-5-1986 the file was taken up in the presence of the counsel for the petitioner and one Muhammad Akbar Pairokar for the respondent No,3. It was again noted that the said Pairokar is not present and the respondent No,3 was proceeded against ex parte. Thereafter, he proceeded to record the statements. Sabir Hussain petitioner stated that he had entered into an agreement with Ghulam Bibi respondent No,1 for sale of land for Rs,1,00,000 and had paid Rs,81,000 that Ghulam Bibi had obtained the grant from Sarwar Khan and Sarwar Khan had paid the price to the Provincial Government who is owner of the land. The said District Judge then proceeded to pass a judgment on the same date. This judgment narrates the contents of the plaint, the conceding written statement filed on behalf of respondent No,1 and mentions that respondent No,3 had contested the suit. Issues are reproduced. Thereafter, it is stated that the claim of the petitioner has been admitted by the attorney of respondent No,1 through the written statement dated 7-2-1984. The judgment then narrates that the counsel for the petitioners has stated that respondent No,3 is a pro forma defendant and his name be deleted and the name has accordingly been deleted. The plaint was also allowed to be amended in the same judgment. The - suit was accordingly decreed.
The said District Judge again on 11-5-1986 recorded the statement of one Raja Ghulam Hussain who stated that he is the general attorney of one "Raj Bibi" and that he has received Rs,19,000 from the petitioner as directed the land was purchased from Sarwar Khan and possession had been delivered to the petitioner. This exercise was also undertaken on an application filed by the petitioner before the said Malik Lutaf Ali.
2. On 5-9-1994 the respondent No,1 (Mst. Ghulam Bibi) filed an application under section 12(2) C.P.C.
For setting aside of the said judgment and decree. Apart from the fact that the said lady denied having ever entered into any agreement or having conceded any suit, the said circumstances were duly pointed out in the said application. The application was replied with bare denials. A learned District Judge, Sargodha, vide order dated 9-4-1996 dismissed the said application. The respondent No,1 filed C.R.No,2795/96 in this Court which was allowed and the matter was remanded back after setting aside of the said order of dismissal to decide the matter after framing issues and recording of evidence. After the remand the issues were framed and evidence of the parties was recorded. The application was allowed by learned District Judge, Sargodha, on 30-8- 2003. The said decree was set aside and the parties were directed to appear before the learned Senior Civil Judge for further proceedings in, the suit itself.
3. Sh. Naveed Shehryar, Advocate/ learned counsel for the petitioner contends that notwithstanding the said-un-explainable conduct of the said District Judge, the matter ought to have been decided with reference to the evidence recorded pursuant to directions issued by this Court. According to the learned counsel, the decree passed in favour of his client by the said District Judge did not suffer from any of the defects mentioned in section 12(2) C P. C . Learned counsel for the respondents, on the other hand, support the impugned order.
4. I have gone through the copies of the records. I have already referred to in some details to the facts and circumstances in which the impugned decree dated 5-5-1986 was passed. Section 12(2)
C.P.C. Enables an aggrieved person to question, inter alia, a judgment or a decree on grounds of fraud, mis-representation and lack of jurisdiction. It is a matter of record that the case was fixed for 2-3-1986 before the learned Senior Civil Judge, Sargodha, for evidence of the petitioner by way of last opportunity. On this date, the evidence was absent and on request of the petitioner, the case was adjourned to 3-5-1986. On this dated, the Judge was on leave and his Ahlmad adjourned the case to 24-9-1986 for evidence. On the same day, the said District Judge summoned the file and passed an order on the same file that on the request of the counsel for the petitioner and respondent No,1, the case is withdrawn from the Court of Mr. Badar-uz-Zaman Chatha, Senior Civil Judge, Sargodha, and is transferred to his own Court and notice was issued to respondent No,3 for the next day. However, the case was taken up on 5-5-1986 in the presence of Khan Abdul Sattar Khan, Advocate, for the petitioner and Muhammad Akbar, Pairokar for respondent No,3. The District Judge wrote that Muhammad Akbar, Pairokar, is present but he states that he cannot give any statement. The counsel for respondent No,3 is not present and he proceeded ex parte against respondent No,3. Thereafter, he recorded the statement of the petitioner which was a prayer that the suit should be decreed. Then, he wrote the judgment and while writing the judgment he noted the request of the counsel for the petitioner and proceeded to delete the name of the respondent No,3 who had filed a written statement giving rise to no less than five issues framed by the learned Senior Civil Judge holding it to be an unnecessary party. On the same day, he recorded the statement of the respondent No,1 and proceeded to pass the said judgment and decree. Later, on 11-5-1986 again, on the application of the respondent No,1, statement of one Raja Ghulam Hussain who is stated to be the general attorney of Raj Bibi (the name of respondent No,1 is Ghulam Bibi) was recorded to complete the said exercise.
5. The examination of the record constrains this Court to observe that it reflects a collusion between the petitioner and the said District Judge. Both of them hand in glove to get the suit decreed come what may.
6. Coming to the said contention of the learned counsel, the statement of the respondent lady that she never authorized her brother to enter into any agreement and that she never received any consideration coupled with the fact that no effort was made to prove that the power of attorney was signed by the lady after understanding the contents thereof in the said over all circumstances of the case do constitute sufficient grounds for setting aside of the said decree. In any case, a trial has been ordered and all the parties will be having a chance to prove their respective contentions.
The civil revision is dismissed with costs.
' The counsel fee is fixed at Rs, 10,000. 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.