MUHAMMAD AMEER BHATTI, J. --- This petition has been directed against the order dated 16.7.2002 passed by respondent No. 5, Additional District Judge, Kasur, accepting the application under Section 12(2), CPC filed by the present respondents for setting aside the judgment and decree of the learned Civil Judge dated 1.10.1991 and remanded the case before the learned Trial Court for its decision afresh after holding the trial of the suit in accordance with law.
2. The brief facts of the case are that the suit for specific performance filed by the present petitioners against the respondents and Noon Hassan the father of the respondent was decreed on 1.10.1991 and the gift-deed which was purportedly executed in favour of the respondents have been declared inoperative and ineffective upon the rights of the present petitioners/plaintiffs. This decree was challenged by the respondents by way of filing an application under Section 12(2), CPC on 17.2.1994, this application was contested by the petitioners by filing their written reply. However, the learned Trial Court vide his order dated 13.4.1994 dismissed the application summarily, this order was challenged through a Revision Petition No. 2104/1994 which was accepted and case was remanded with a direction to decide the matter after framing issues and recording the evidence of the parties. Thereafter, the learned Trial Court framed the issues and provides the parties to lead the evidence according to their onus of issues. However, at the end of the trial the application of the petitioner vide his order dated 15.10.2001 dismissed the application against which a revision petition has been filed before the learned Additional District Judge, Kaur vide his order dated 8.2.2002 by accepting the revision petition remanded the case back to the learned Trial Court to decide the matter afresh. The learned Civil Judge vide his judgment dated 5.4.2002 dismissed the application and the revision petition was filed before the learned Additional District Judge, vide judgment dated 16.7.2002 accepted the application of the applicants/respondents for setting aside the impugned judgment and decree of the learned Trial Court and direction has been issued to the learned Trial Court to hold the trial afresh and this'-order of the learned Trial Court was challenged through W.P.
No. 18947/2002 and that writ petition was accepted vide judgment dated 21.7.2003 on the ground that at the time of deciding the matter by the learned Additional, District Judge dated 16.7.2002, the Court had no pecuniary jurisdiction. However, at the time of deciding the writ petition the pecuniary jurisdiction of the learned District Judge has been enhanced by the inserting the amendment for the relevant provisions of law and the case was again remanded before the learned Revisional Court for its decision afresh. However, in the post-remand the learned Revisional Court accepted the revision petition vide his judgment dated 8.4.2004. Resultantly, the application under Section 12(2), CPC of the respondents have been accepted and the suit of the present petitioners have been deemed to be pending before the learned Trial Court for its trial. This order has been challenged through this writ petition before this Court.
3. The learned counsel for the petitioners contends that nothing is knew has been raised by the present respondents in their application, these all grounds have been taken in the written statement and after considering of the relevant facts of the case the decree has been passed in favour of the present petitioners.
4. When confronted with the evidence on the record that the claim of the respondents that they have not put their thumb impression on the written statement, Vakalatnama and this fact have been proved on record through the testimony of the respondents as well as the report of the Incharge of Finger Print Bureau.
5. Learned counsel for the petitioners has no answer except to set to make a lame excuse that he is a bona fide purchaser and the decree had been obtained after the due trial of the case. He further contends that since he is not involved in any fraud, hence he shall not be penalized, if any fraud has been committed by the brother of the respondents . The contention of the petitioner is not tenable in the eye of law since the respondents are effectees from the decree obtained by the present petitioners without their consent and they have been condemned unheard as they have not engaged any counsel nor put their thumb impression on the power-of-attorney and the written statement, hence all the proceedings whatever have been taken in the suit, have been made on the basis of fraud and misrepresentation. Since the law has provided the remedy under Section 12(2), CPC where the decree had been obtained by committing fraud and misrepresentation which has been proved through the evidence available on the record, hence the order of the learned Revisional Court is inconsonance with the evidence available on the record.
Hence, this petition is not maintainable as the learned Revisional Court has not committed any jurisdictional defects while exercising his power. In the above terms, this petition is dismissed. No order as to cost.