Through this civil revision petition filed under Section 115 CPC, the petitioner, Muhammad Ashraf Khan has challenged the judgment and decree dated 5/10/2004 passed by the learned Additional District Judge-IV Bannu, whereby his application under Section 12(2) CPC was dismissed.
2. Learned counsel for the petitioner mainly argued that the trial Court has not afforded opportunity of producing evidence, therefore, the impugned judgment is nullity in the eye of law. According to him, in the application under Section 12(2) CPC, the petitioner has alleged fraud which is a question of fact and cannot be decided without evidence and, therefore, the impugned judgment and decree is based on surmises, conjecturers and mis-reading/non-reading of evidence.
3. On the other hand, learned counsel for the respondents contended that there is no need of evidence because the matter is proved on the basis of available record, therefore, the impugned finding needs no interference.
5. I have carefully perused the record and considered the arguments advanced at the bar.
6. The expression under Section 12(2) CPC is based on the application of fraud which involves factual controversy and cannot be decided unless evidence is recorded. The record shows that no evidence has been recorded. In my opinion, the decision of the learned trial Court which is not based on evidence is not in accordance with law because question of fact cannot be decided by a Court without having evidence of the parties before it. In this respect, I rely upon Mrs. Hasnain Haider Vs. Amir Haider and others reported in 2008 SCM R 236 wherein it has been held that:-- "Obviously, an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence. It is for this period that the Supreme Court had allowed and fixed a period of one year for the decision involved. Despite orders of the Supreme Court, the trial Court never proceeded to record evidence of the parties about their assertions and counter-assertions involving serious questions of fact to be settled on both sides. The only motivating factor for rejection of application was the reply/written katement of the arbitrator and his earlier statement dated 1/7/1979. This was a novel procedure adopted by the trial Court and endorsed by the higher Courts, in that, the pleadings of parties could never be taken as an evidence particularly when the Arbitrator was not even examined in Court in support of his written statement muchless his cross-examination by the party desiring so to do. A mere written statement by a respondent has not at all been a valid ground for guillotining a serious application filed 'by the ladies and by-passing the order dated 10/4/2003 of the Supreme Court. The trial Court did not exhibit a judicial behaviour and the higher Courts endorsed it with no application of mind."
7. Through the above principles laid down by the Apex Court, I h have reached to the conclusion that the impugned judgment and decree is not in accordance with law.
8. Consequently, I accept this revision petition, set aside the impugned finding of the trial Court and remand the case to it for recording of evidence to be produced by the parties. Since the dispute between the parties is too old, therefore, the trial Court is directed to dispose it off positively within three months after receipt of record from this Court which shall be sent back to the trial Court forthwith.