1. ORDER MUHAMMAD TASNIM, J.---Learned counsel for the applicant has attacked the impugned order dated 8-1-2010 passed on the application under section 12(2), C.P.C. Filed by the present respondent in Summary Suit No. 22 of 2009 by the Court of learned 2nd Additional District Judge, Khairpur.
2. Learned counsel for the applicant has submitted that the applicant Karim Khan had filed a Summary suit against the present respondent. Application for leave to defend was filed by the respondent. The learned trial Court after hearing the parties allowed the leave to defend application and directed the respondent to furnish bank guarantee in the sum of Rs.2,10,000. Said order of the learned trial Judge was not complied with and surety was not furnished accordingly ex parte proceedings were drawn and finally the learned trial Court vide judgment and decree dated 15-10-2009 and 28-10-2009 respectively decreed the suit of the plaintiff as prayed.
3. Learned counsel further says that subsequently the respondent filed an application under section 12(2), C.P.C., contending therein that the cheque which was subject matter of the suit did not belong to the respondent and in support of his contentions respondent they placed on record a Certificate from the relevant bank which confirmed the contentions of the respondent.
4. The learned trial Court after hearing the parties vide impugned order allowed the application under section 12(2), C.P.C. And set aside the judgment and decree passed on 15-10-2009 and 28- 10-2009 respectively. However, the respondent was directed to furnish surety in the sum of Rs.200,000 and personal bond in the like amount.
5. Learned counsel for the applicant contended that the provisions of sebsection 12(2), C.P.C. Are not attracted in this case. According, to learned counsel for applicant section 12(2), C.P.C. Applies if there is defect in jurisdiction or allegation of misrepresentation or fraud is alleged. He has submitted that in this case neither fraud nor misrepresentation was alleged, hence the application under section 12(2), C.P.C. Was ought to have been dismissed as not maintainable. He says that the impugned order be set aside and judgment and decree passed earlier by the trial Court may be ordered to be revived.
6. On the other hand, learned counsel for the respondent has submitted that no doubt the compliance of order was not made which was passed on the application for leave to defend.
7. Consequently decree was subsequently passed. But on verification from the bank it transpired that the cheque which is the subject-matter of the suit had no relevancy or concerned with the respondent, hence he preferred an application under section 12(2), C.P.C. Learned counsel for the respondent further says that order passed by the learned trial court is perfect and in accordance with law may not be disturbed.
8. I have heard the learned counsel for the parties and have gone through the record. It is an admitted position that the leave to defend was granted directing the respondent to furnish bank guarantee in the sum of Rs.2,10,000. It is also admitted position that due to non-compliance decree was passed by the Courts below. However, the application under section 12(2), C.P.C. Was disposed of by the learned trial Court, without holding any summary enquiry in the matter. Learned trial Court ought to have framed issues and should have afforded an opportunity to the parties to lead their evidence and thereafter after recording the evidence of the parties application under section 12(2), C.P.C. Should have been disposed of. Since proper course has not been adopted by the trial Court, it will be just and fair to set aside the order impugned.
9. The net result of above discussion would be that parties shall appear before the trial Court on 25- 10-2010 and on the said date the respondent shall furnish bank guarantee in the sum of Rs.2,10,000 and also execute bond as ordered by the learned trial Court. Thereafter the trial Court shall frame issued for disposal of application under section 12(2), C.P.C. Once issues are framed the learned trial Court shall afford an opportunity to the parties to lead their evidence and thereafter after hearing the arguments of the parties counsel shall dispose of the application under section 12(2), C.P.C. By speaking order.
10. In view of above this revision is allowed the impugned order is set aside and the matter is remanded to the trial Court for it's disposal afresh in terms indicated above. If surety is not furnished by the respondent on the date mentioned above, his application be dismissed for noncompliance of order passed by this Court.