' SYED SAJJAD HASSAN SHAH, J.---This judgment shall also dispose of Civil Revision No, 796 of 2008 both arising out of a common judgment dated 10-12-2007 passed by the learned Civil Judge, whereby application under section 12(2), C.P.C. Accepted and decree passed on 16-11-2005 was set aside.
1. Brief facts leading to the instant litigation are that the petitioner has instituted the instant suit seeking for the declaratory decree to the effect that he is owner in possession of land detailed in the plaint to the extent of 16 kanals, 5 marlas, vide sale-deed dated 9-12-2004, also prayed for the decree for issuance of perpetual injunction, recovery of possession and in alternate the recovery of Rs,18,00,000. It is alleged by the plaintiff/petitioner that an oral sale transaction was effected in between the plaintiff/petitioner and the defendants/respondents in the year 1998, a sum of Rs,8,000 was paid as advance money, possession was delivered by the defendants/respondents under the said sale transaction. On 9-12-2004, Rs,18,00,000 as the entire sale consideration was paid to the defendants/respondents, to this effect a sale agreement was executed in between the parties, wherein, it was agreed that the suit property would be transferred through registered sale- deed or mutation in favour of plaintiff/petitioner. The defendants/respondents failed to fulfil their obligations, as agreed upon, therefore, to enforce the agreement, the plaintiff/petitioner has instituted the instant suit. Written statement was filed by one Haji Jehanzeb, the special attorney of the defendants/respondents as well as Asif Khan, Advocate Peshawar, the defendants/respondents have not denied the sale transaction but it is alleged that a Jirga was convened, besides, the above stated sale amount a sum of Rs,10,00,000 demanded as an additional sale consideration of the suit property but the plaintiff/petitioner agreed to pay a sum of Rs,6,00,000 as per decision of Jirga. On 16-9-2005 a sale agreement was executed, same was signed by defendant No,3 on his own behalf and as the general attorney of the defendants/respondents Nos.2 and 4, as they are real brothers inter se. The execution and registration of general power of attorney by Sub-Registrar, Tehsil Pashin Baluchistan was admitted on behalf of the defendants/respondents, moreover, the compromise deed/sale agreement executed by Jehanzeb, Special Attorney of the defendants/respondents, a total sum of Rs,24,00,000 as sale consideration admitted to have received by the defendants/respondents, the attorney deed in favour of Haji Jehanzeb is Exh.P.W.1/1, compromise deed is Exh.D.W.U2 dated 10-11-1992, the sale agreement executed earlier on 16-9-2005, by Pir Hassanullah in person and on behalf of other brothers/defendants/respondents as their attorney. An application was also moved for requisition of file by attorney, signed by Asif Khan, Advocate. The learned trial court requisitioned the file and statement of Haji Jehanzeb was recorded as D.W.1. The learned trial court in view of the admission of the sale transaction and sale consideration in written statement, compromise deed and statement recorded before the court by the attorney of defendants/respondents, therefore, decreed the suit of the plaintiff/petitioner on 26-11-2005. After passage of about two years, the defendants/respondents rescinded the registered power of attorney by deed of cancellation filed in the office of Sub-Registrar Pashin i.e. 31-1-2007.
2. Azizullah and Abdul Haleem sons of Abdul Hai, the defendants have challenged the judgment and decree under section 12(2), C.P.C. On 20-12-2006, on the grounds that they have not been served with any notice or summons regarding the institution of suit by Peer Muhammad Azam. The registered power of attorney on their behalf produced on the file was fake and fictitious document.
Pir Hassan Ullah was having no authority to appoint special attorney, therefore, sale through compromise could not be made in favour of plaintiff/petitioner herein, same is also the result of fraud and collusion may be set aside. It is alleged that neither the sale transaction was made nor possession was delivered to the plaintiff/decree holder/petitioner. They have acquired the knowledge of I A the decree on 6-12-2006, therefore, the judgment and decree challenged by way of the instant application.
' The application was contested by plaintiff/decree holder/ petitioner by written reply dated 27-2- 2007. The learned trial court while considering the maintainability of the application, without framing issues and recording evidence, taking any further proceedings, accepted the application, set aside the judgment and decree vide impugned order dated 10-12-2007.
' The order was challenged by filing Civil Revision No, 2 of 2008 on 16-1-2008. The learned District Judge-XII Peshawar returned the memo. Of revision petition on 21-10-2008 for want of jurisdiction as the pecuniary value of subject matter exceeds the prescribed limits of jurisdiction of the District Judge. The petitioner filed the revision petition on 28-10-2008 before the High Court, however, an application moved for condonation of delay, caused in filing the same in the court of the learned District Judge.
3. The learned counsel for the petitioner contended that the impugned order patently against the law, without jurisdiction, unlawful and passed in violation of the procedure prescribed under the law. He argued that the learned trial Court before deciding the application has not been provided opportunity to the plaintiff/petitioner to adduce evidence and to prove that the proceedings conducted in the suit was in accordance with law, allegation of fraud and collusion attributed are baseless and just to deprive the petitioner of his legal rights, acquired as a result of decree in the suit. The defendants/respondents appointed Peer Hassan Ullah, as their general attorney by duly executed general power of attorney registered by Sub-Registrar, Pashin Baluchistan, same was produced on the record. Pir Hassanullah being general attorney executed the sale deed dated 16- 9-2005, appointed Haji Jehanzeb, as special attorney, who has executed a compromise deed, signed and verified the written statement filed in the court. All the documents were duly signed by Peer Hassan Ullah and Haji Jehanzeb attorney. He argued that the allegations of the defendants/respondents, about the agreement as well as attorney deeds are concocted, fake and fictitious documents and procured by practising fraud. Both the parties are closely related inter se.
There is no likelihood to commit the fraud. He prayed that the impugned judgment and order may be set aside, reliance placed on 2008 SCMR 236. Learned counsel further contended that since the revision petition was filed within time before the learned court of District Judge, same was entertained and subsequently on objection of defendants/respondents it was returned to the plaintiff/petitioner. He argued that the delay was caused inadvertently, as the misconceived advice tendered by the counsel, the petition was entertained and proceeded by the District Judge, without there being any fault on behalf of the petitioner, thus, the delay caused on account of act of court. In view of the dictum laid down in PLD 2005 Peshawar 214, the delay as was occasioned in the court of District Judge may be condoned.
4. The learned counsel for the respondent, while rebutting the arguments of the learned counsel for the petitioners, supported the impugned judgment and decree and further contended that if the court is satisfied about the commission of fraud and collusion on the part of the plaintiff/petitioner, empowered to set-aside the judgment and decree. He further contended that now the parties can produce their evidence in the trial of suit. The learned counsel controverted the request for condonation of delay made by the petitioner by arguing that forum, to file the revision petition had wrongly been chosen by the petitioner, therefore, committed gross negligence and not entitled to any leniency, thus, the application for condonation of delay is liable to be dismissed. In this respect, he has relied upon precedent law i.e. PLD 2006 SC 773, 2006 CLC 236, 2003 CLC 1472, 2002 SCMR 1761, 2001 SCMR 46, 2006 SCMR 531, PLD 2003 Pesh. 46, 2007 YLR 1739 and 2003 SCMR 1471.
5. The arguments of learned counsel for the parties considered and record carefully perused.
6. The contention of learned counsel for the petitioner that compromise deed filed and attested by the learned trial court in presence of some of the parties and their attorney, the payment of sale consideration was admitted. The sale deed was signed by Peer Hassan Ullah and witnessed by Haji Jehanzeb and others, whereas, compromise deed and written statement were signed by Haji Jehanzeb, special attorney. A sum of Rs,28,00,000 allegedly received by the defendants, whereof the sale deed and the cognovit etc. Executed and filed in the court. In such circumstances the plaintiff/petitioner has acquired the vested right in the suit property. In alike circumstances, the decree holder can claim that his rights may be determined after providing him full and fair opportunity of hearing, so that he may be able to prove the execution of documents and payment of sale consideration, as the sale transaction culminated in the decree of the court. This case is not of such a nature that after receiving the written reply to an application under section 12(2), C.P.C., without proceedings further i.e. Framing of issues, recordings of evidence, the application can be decided. Every case is to be adjudged on its own merits and factual and legal plane, the case law referred by the learned counsel for the respondents can be distinguished in view of the facts of instant case.
7. The learned trial Court ipso-facto believed the veracity of allegations made in the application filed under section 12(2), C.P.C. By the present respondents against the petitioner/plaintiff, the averments made in the application not attended in the light of material available on record, in order to see as to whether any vested interest has been acquired by the petitioner or not by dent of those documents, filed on record by the plaintiff/petitioner. The learned trial court while setting aside the judgment and decree discarded the documents available on record in clear violation of law, as unproved material considered and discussed in deciding the matter, such method of decision would not promote the cause of justice rather impede fair administration and dispensation of justice, it can not be determined that certain event is based on truth or the result of fraud, unless, provided opportunity to prove their respective stance by their evidence, how a document requiring proof can be disbelieved and discarded, merely on the ground that the same is photocopy and not the original. As it was the anxiety of the learned trial court that the power of attorney in favour of Jehanzeb is a photocopy, similarly the registered power of attorney available on the file is also a photocopy. Without there being original documents and confronting the same to the executant of the document, how any opinion can be formed about the validity of such document, learned trial Court while recording the findings in the impugned order observed as follows:-- "Perusal of main case file reveals that the respondent/DH relied upon the sale-deed Exh.D.W.1/3 executed between respondents/ D.H. And general attorney for petitioner namely Peer Hassan Ullah petitioner/JD., but it is worth mention, here, that very general power of attorney was neither produced nor been exhibited in the main case file. Furthermore, the compromise deed Exh.D.W.1/2 on the basis of which the decree has obtained has also been executed between respondents/D.H., and the petitioner/J.D., through attorney namely Jehanzeb, however, special power of attorney on behalf of one Peer Hassan Ullah in favour of Jehanzeb reveals that no signatures of any of the petitioner/J.Ds, are present on that very special power of attorney Exh.D.W.1/1 nor the general power of attorney which has alleged to have been executed in favour of Peer Hassan Ullah by the petitioners on the basis of which the special power of attorney has executed by Peer Hassan Ullah in favour of one Javed has produced nor exhibited in the main case file. The written statement shows that none of the signatures of the petitioners/J.Ds/defendants are present there upon and it has also been submitted through special attorney Jehanzeb, thus created doubt in the instant decree dated 16-11-2005 which has obtained on the basis of compromise affected between DH/respondents and petitioners/JD through their attorney. Moreover, to bring the clear picture of the case on record and to dig out the real controversy between the parties, it would be appropriate to decide the instant case on its merits. Hence the instant 12(2) petition is accepted and decree dated 16-11-2005 is hereby set aside. No orders as to costs."
8. The afore-stated findings can be obviated, as against the law and available material on the record, if petitioner would be provided the opportunity to produce the original documents, those are in possession of the plaintiff/petitioner who has obtained judgment and decree in his favour, the petition under section 12(2), C.P.C. Was liable to be rejected. Moreso, the decision was rested upon merely the suspicious and doubts, according to the learned trial court the power of attorney in the name of Jehanzeb has not been signed by Peer Hassan Ullah as there was no signature made there upon. Likewise, the special power of attorney Exh.D.W.1/1 and the general power of attorney (as observed by the learned trial court) allegedly to have been executed in favour of Peer Hassan Ullah by the respondents, on the basis of which the special power of attorney was executed by Peer Hassan Ullah in favour of one Haji Jehanzeb has neither produced nor exhibited in the main case file, similarly about the written statement, the learned trial Court expressed, that the same has not been signed by the respondents/defendants, those were also filed through special attorney and are doubtful. A close scrutiny of the findings recorded by learned trial court, clearly reveals, that same are based upon conjectures and surmises, presumptions, suppositions and doubts, this method of adjudication of the disputes in the matters of the dispensation of justice is not inconsonance with the norms of law and justice.
9. On the basis of above referred documents, the judgment and decree was passed therefore, vested rights accrued to the plaintiff/petitioner in the subject matter of the litigation and the same cannot be taken away without affording opportunity to furnish proof. This is also a question that as the respondents contended that those documents were procured by practising fraud upon the court whereafter the decree was passed on the basis of those documents. This is an important aspect of the matter which calls for the determination as to competency and maintainability of application under section 12(2) or any other remedy to be resorted for redressal of the matter.
10. Be that as it may, the question calls for consideration is that how without the trial of the case and affording due opportunity to both the parties to adduce their evidence in proof and rebuttal of their respective pleas could decide the allegation levelled in the application under section 12(2) of C.P.C., moreso, the documents available on record require proof through valid and convincing evidence and the payment of Rs,24,00,000 as admitted in compromise deed, before the court as well, therefore, the provisions contained in Articles 117, 118, 17, 79 and many others provisions of law can be pressed into service during the proceedings of the application, but in the instant case all those provisions are made redundant by over sighting their evidentiary value. Even a thumb impression/signature purportedly made on a document, if denied cannot be considered as a valid denial unless duly confronted the person allegedly thumb impressed or signed, thus, the court was duty bound to direct the parties to produce their evidence, however, the judgment and decree passed by the learned trial Court is contrary to mandatory provisions of law, connotes, illegal exercise of jurisdiction and amounts a sheer example of miscarriage of justice.
11. There is no provision of law, whereby, the pleadings of the parties will be considered as prima facie proof of the allegations made therein, unless the facts mentioned in the pleadings have not been proved and in support, thereof, the maker of the documents appears before the court and testifies that the document has been scribed at his instance and furnishes the particulars of fraud and their proof thereof, stands to the test of cross-examination in absence, whereof, pleadings are not sufficient to substantiate the claim of party to suit, if the party to suit did not appear to testify about the pleadings not to be considered as the proof of facts mentioned therein, same have always been excluded. Reliance in his respect can be placed upon PLD 1972 Supreme Court 21.
12. The allegation of fraud and forgery made in the pleadings cannot I be considered as gospel truth, unless proved in accordance with letter F and spirit prescribed under the law. Fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence, much-less mere allegations cannot be the partake of proof G required under the law.
' Hon'ble apex Court in case titled MRs, Anis Haider and others v. S. Ameer Haider and others reported in 2008 SCMR 236 ruled as under:--
(a) Civil Procedure Code (V of 1908)--- ---S. 12(2)---Application under S.12(2), C.P.C. Contained serious allegations of forgery and fraud could not be decided without recording of evidence.
(b) Civil Procedure Code (V of 1908)--- ---Ss. 12(2), 141 & O.VII, R.11(a)---Application under S.12(2), C.P.C. Containing serous allegations of forgery and fraud--- ' Rejection of such application on basis of reply/written statement by invoking provisions of O.VII, R.11(a), C.P.C.---Validity--- Order VII, R.11, C.P.C. Pertaining to suits and plaints in particular would be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R. 11, C.P.C.
Could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings---Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of 5.141, C.P.C. Would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not by passed by unjustifiably invoking of O.VII, R. 11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence--- Principles.
(c) Pleadings--- ---Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent.
13. While deciding the questions of fraud and misrepresentation, as pleaded in the application under section 12(2), C.P.C., the recording of evidence is the requirement of law, thereafter, in the light of evidence any order can be passed, but not to be dismissed summarily and to short circuit the proceedings in haste, uncalled and indecent manner, in support thereof, reference made to a case reported as PLD 2005 Pesh 214, in this context the ratio laid down in case titled Muhammad Akram Malik v. Dr. Ghulam Rabbani, reported as PLD 2006 SC 773, the relevant is para 5 at page 62, which is reproduced as under:-- "The petition in question has also been adjudged on the touch stone of the criterion as mentioned hereinabove. We are of the considered view that misrepresentation and fraud have been alleged in the application preferred under section 12(2), C.P.C. As is indicative from para 6 of the application which has been reproduced in the order impugned. In fact the learned trial Court has not appreciated the contents of application in the light of provisions as contained in section 12(2), C.P.C. And dismissed the same in a casual and cursory manner. In view of the circumstances of the case and allegations levelled in the application under section 12(2), C.P.C. It should have not been dismissed summarily. The learned High Court has exercised its discretion judiciously and the order impugned being well based does not warrant interference as no prejudice whatsoever has been caused to the petitioner who would have ample opportunities to canvass his point of view and substantiate his claim and rebut the allegation of misrepresentation and fraud before the courts concerned."
14. The learned counsel for the petitioner moved an application under section 5 of the Limitation Act, seeking for condonation of delay caused on account of misconceived advice of the counsel of the petitioner, the learned counsel contended that the revision petition was filed well in time same was entertained and registered, the notices were issued to the respondents, it was pursued with all diligence, however, filed the petition in good faith before a wrong forum on account of mistaken advice of the counsel, the delay can be condoned under sections 5 and 14 of the Limitation Act, 1908 as the order questioned in this petition is patently illegal and unlawful, which shall gravely effect the precious rights of the petitioner in the suit property, therefore, the delay may be condoned and the petition may be decided on its merits. The contention of learned counsel seems to be genuine as the decision made by learned trial Court on 10-12-2007, the revision petition was filed immediately on 16-1-2008 within 90 days, the petitioner has diligently prosecuted remedy in the court of Additional District Judge-XII, no objection was raised at the time of its admission as well as at any time during its pendency, however, the respondent summoned and after joining the proceedings raised the objection that on account of pecuniary jurisdiction the petition cannot be adjudicated upon by the learned Additional District Judge, therefore, it was returned to the petitioner and the same was filed before the High Court without further delay. Had it been returned on the first date of hearing for want of pecuniary jurisdiction, the petitioner could have filed the same within period of limitation before the High Court, it cannot be ignored that the time consumed on account of act of the court, therefore, where the question of right is seriously contested by the petitioner and in case it would be attended on technical grounds then the petitioner might not suffer to his right without any fault on his part. In this regard, the reliance placed on a celebrated .Judgment of the Division Bench of this Court authored by his Lordship Mr. Justice Ejaz Afzal Khan, titled "Mst. Bas Khana and others v. Muhammad Raees Khan" reported in PLD 2005 Peshawar 214, wherein in similar circumstances the delay was condoned, ratio of the judgment reproduced as under:--
(b) Civil Procedure Code (V of 1908)--- ---S. 104 & 0. XLIII, R.1 (a) --- Limitation Act (IX of 1908), Ss. 5 & 14---Maxim: actus curiae neminem gravabit--- ' Applicability---Appeal against order of return of plaint--- Limitation---Condonation of delay-- Appeal filed before Appellate Court was entertained and was admitted to regular hearing on the same date---Subsequently when respondents raised objection about its competency on account of pecuniary jurisdiction, it was returned by Appellate Court against which appeal had been filed-- -Plea of appellants was that where appellants pursued their remedy with all diligence at their back and called in a wrong forum, any delay so consumed in such forum, could well be condoned under Ss.5 and 14 of Limitation Act, 1908 when order sought to be impugned was illegal on the face of it-- -Contention of respondent was that filing or prosecution of appeal in a wrong forum even in good faith or on account of mistaken advice of counsel, would not furnish a justification for condonation of delay and that appeal being hopelessly time-barred, was liable to be dismissed---Validity-- Record revealed that appellants, soon after announcement of order, applied for its attested copy and after getting same, filed appeal---Appellants had been pursuing their appeal with due diligence---Appeal was filed in a wrong forum appellants asked for its return the moment it transpired that the forum was wrong, and soon thereafter, present it before the High Court--- Nothing was on record which could give an indication that appellants had acted with negligence-- -Contention of respondent, that filing or prosecution of appeal in a wrong, forum, even in good faith or on account of mistaken advice of counsel, would not furnish a justification for condonation of delay, was repelled--When appeal was entertained and even admitted by Court without adverting to its competency on account of pecuniary jurisdiction, all the time so consumed from its entertainment to its return, could not be debited in the account of appellants and they would not be allowed to suffer for the act of the Court--Had it been returned on the first date of hearing, appellants could have presented it in the High Court well within time---Since time was consumed due to the act of the Court it would certainty constitute sufficient cause for condonation of delay according to principle enshrined in maxim actus curiae neminem gravibit", (an act of the court shall prejudice no person)---Case for condonation of delay, had been made out, in circumstances.
15. Since the petitioner cannot be deprived of his legal remedy on technical knock out as he has endeavoured to proceed with the case diligently, therefore, the delay is condoned.
16. In view of the above discussion, this was not the case of acceptance of the petitioner filed under section 12(2), C.P.C., therefore, the judgment and order passed by learned trial court is illegal and derogatory to the principle that no body should be condemned unheard. The decision in the manner as in the instant matter made without recording any evidence, hence, not approved under the law, declared as unlawful and without jurisdiction.
17. This petition is accepted, judgment and order of the learned trial Court is set-aside, the application under section 12(2), C.P.C. Deemed to be pending, remanded back to the learned trial Court deciding the same under the law, after affording opportunity to produce evidence to both the parties. The learned trial Court is directed to decide the instant application with a period of three months without fail, after receipt of record.