' MIAN FASIHUL MULK, J.--- Bone of contention is the legacy of Bakht Mand deceased and his deceased widow Mst. Mehrun Nissa, who had four sons namely Anwar Hayat, Akram Hayat, Faisal Hayat (petitioners Nos.l to 3) and Shaukat Hayat (respondent. No,3) as well as four daughters namely Mst. Saeeda, Mst. Rozina (petitioners Nos.4 and 5), Mst: Durre Samin and Mst. Hameeda (respondents Nos.1 and 2).
2. As the entire property was joint, therefore, a compromise Deed No,1336 dated 5-9-2007 was executed between the legal heirs of Bakht Mand except Shukat Hayat (respondent No,3), which was duly signed by the husbands of Mst. Durre Samin, Mst. Rozina and Mst. Saeeda, namely Fazle Rabbi (respondent No,4), Mehboob Ali and Fazle Qadir respectively.
3. Subsequently, all the female legal heirs of late Bakht Mand filed a declaratory suit against the male members except Shaukat Ali before the Court of Senior Civil Judge/Aala Illaqa Qazi Swat. The respondents did not contest the claim and again the parties entered into a written compromise followed by recording a joint statement before the Court for grant of decree in terms of the compromise, which was accepted and the decree as prayed for was granted in favour of plaintiffs.
4. The aforesaid decree was challenged by Shaukat Hayat (respondent No,3), by way of filing application under section 12(2), C.P.C. On the ground that he was not made a party to the suit. It may be mentioned here that as per compromise, Mst. Hameeda had relinquished her share in favour of Shaukat Hayat, therefore, the remaining legal heirs contested the petition and filed an application for rejection of the same. The trial Court, after appreciating the facts and circumstances of the case, dismissed the petition under section 12(2), C.P.C. Without holding any further proceedings vide order dated 20-11-2008. It was held that the share of Shaukat Hayat in the legacy of their parents was never affected and from the Revenue Record available on file, his share was duly incorporated, therefore, there was no element of misrepresentation or fraud on part of remaining legal heirs, which are essential ingredients for an application under section 12(2), C.P.C.
Shaukat Hayat did not challenge the above order further, which thus attained finality.
5. After about a year, respondents Nos.1 and 2 through their attorney Shaukat Hayat filed another application under section 12(2) C.P.C., thereby challenging the validity of decree on the grounds of fraud and misrepresentation. Petitioners again contested the petition and filed application for dismissal of the same being tainted with mala fide and frivolous one. The trial Court accepted the application and dismissed the petition under section 12(2), C.P,C. By holding that the compromise in question was duly signed by husbands of respondents Nos. 1 and 2, for which purpose they were duly nominated by them as their attorneys.
5-A. Respondents Nos.1 and 2 challenged the above order of trial Court in revision petition before the Court of District Judge, Swat, who entrusted the same for disposal to the Court of Additional District Judge-II. The revision petition was accepted vide impugned order dated 15-3-2001. It was held that learned trial Court was required to have decided the factual controversy between the parties by recording pro and contra evidence. Resultantly, the case was remanded to the trial Court for proceedings accordingly.
6. Petitioners, being aggrieved of the impugned order of learned revisional Court has thus invoked the constitutional jurisdiction of this Court through instant petition.
7. We have heard arguments of learned counsel for the parties and have also gone through the record. Respondent No,3, Shaukat Hayat despite service did not attend the Court and he was placed ex parte. Respondent No,4 being husband of respondent No,1 also had the knowledge of instant writ petition but failed to make appearance before the Court and was proceeded against ex parte vide order dated 4-4-2012.
8. Perusal of the record would reveal that respondents Nos.1 and 2 through their duly nominated attorneys had entered into a compromise with petitioners by recording a joint statement for their due share in the inheritance of common predecessor-in-interest and the suit was decreed in view of the terms of compromise and joint statement of parties, which was duly acted upon. The application of respondent No,3 Shaukat Ali under section 12(2), C.P.C. Was earlier dismissed by the trial Court after properly examining the controversy between the parties and, therefore, A subsequent application of respondents Nos.1 and 2 at the behest of said respondent No,3 being unjustified was rightly dismissed by the trial Court. The interesting aspect f the case is that petitioners have approached the competent Court for grant of a Succession Certificate, wherein respondents Nos.1 and 2 are again represented by their husbands and admit the genuineness of the compromise along with other legal heirs. Moreover, Mehboob Ali, husband of petitioner No,5 has filed a duly sworn affidavit dated 23-5-2012 wherein he too has affirmed the fact that he was one of the attorney along with the attorneys of respondents Nos.1 and 2 as well as petitioners Nos.4 and 5 and that he had willingly signed the compromise deed in question on the basis of which a decree was passed in favour of respondents Nos. 1 and 2.
9. Now, coming to the question as to whether in such circumstances the trial Court was required to have recorded pro and contra evidence of the parties while deciding the application under section 12(2), C.P.C., we are of the view that it was not necessary for the trial Court when there was appearing no element of alleged fraud and misrepresentation from the available record. The apex Court has consistently laid down that it is not obligatory for the Court to frame issues and record evidence in each case and such an application can be decided on the basis of available evidence and relevant record, if considered sufficient by the Court. For sake of convenience the view taken by the august Supreme Court of Pakistan in various cases at various occasions is hereby reproduced as under:--- Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another (1999 SCM R 1696).
Under S. 12(2), C. P. C. Before Trial Court alleging fraudulent representation relating to decree passed by Court---Framing of issues by Trial Court---When not necessary-Where Trial Court was satisfied that there was absolutely no element of fraud or misrepresentation, and no prima facie case or reasonable grounds existed for setting aside the decree in question, it had rightly declined to frame any issue or record evidence on the application made under S.12(2), C.P. C.
Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCM R 296).
Proceedings on petition under S.12(2), C.P.C. While dealing with allegations under S.12(2), C..P.C. It was not incumbent upon Court that it must, in all circumstances frame issues, record evidence and follow procedure prescribed for decision of the suit.
Nazir Ahmad v. Muhammad Sharif and others (2001 SCM R 46)
Non framing of issues and non-recording of evidence for the decision on the application under S.12(2), C.P.C. Was not a condition precedent in the matter. Formulation of issues and recording of evidence was not necessary.
Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCM R 1050).
Remedy available under S.12(2) C.P.C. Scope---Such remedy would not be available like a regular suit and the Court may dispose of an application under S.12(2), C.P. C. Without framing issues, recording evidence of the parties and following the procedure for trial of the suit.
Warraich Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCM R 531).
Framing of issues in every case to examine the merits of such application would certainly frustrate the object of section 12(2), C. P. C. Which is to avoid protracted and time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below, which are already over-burdened.
10. In our view, the available facts and evidence on record in this case were quite sufficient for arriving at a just conclusion of the lis and to dispose of the application under section 12(2), C.P.C.
Without framing issues and recording evidence. The intention of applicants/respondents Nos.1 and 2 is very much evident to drag the petitioners and other legal heirs by filing frivolous applications.
The trial Court through an elaborate judgment/order has come to the conclusion that no fraud was committed by petitioners upon respondents Nos.1 and 2. In these circumstances, the approach of learned revisional Court to the matter is not sustainable and the same being erroneous is liable to be set aside.
11. Accordingly, instant writ petition is accepted, the impugned order of revisional Court is set aside and that of the learned trial Court is restored. The parties are left to bear their own costs.