MUHAMMAD AMEER BHATTI, J. --- This appeal has been directed against the order dated 08.04.2011 passed by the learned Civil Judge. Being an order under Section 12(2) of the CPC, no appeal is provided under Order 43, Rule 1 of the CPC. However, this appeal is converted into civil revision in the interest of justice and the office is directed to number the same accordingly.
2. The brief facts of the case are that respondent No. 4 is presently occupant to the extent of five marlas piece of land out of total disputed land after emerging successful in litigation upto High Court against the LDA. On the basis of that decree he has been declared owner of the land which, is the part of decree obtained by the petitioner in his suit for specific performance against Muhammad Younas by regarding him an owner of the land.
The learned Trial Court after inviting the written reply and considering all the documentary evidence in the shape of judgment and decree upto High Court placed on record in support of his case by the applicant/respondent No 4, vide order dated 08.04.2011, set aside the decree passed in the suit for specific performance of petitioner which has been obtained against Muhammad Younas on the basis of his consent.
3. Learned counsel for the petitioner contends that he has obtained the decree bona fidely as he had paid Rs. 49,50,000/- to Muhammad Younas, who claimed himself to be the original owner of the total land. Since the disputed questions of fact have been raised in this case, the application under Section 12(2), CPC by the respondent No. 4 and in other applications filed by respondents No. 1, 2 and 3 independently. So the learned Trial Court was under legal obligation to decide the matter after framing the issues and providing the opportunity for producing the evidence to the parties.
For that matter he has relied Mst. Bibi Sahiba and 9 others v. Mustaqir Shah and others (2002 SCM R 1838), Mrs. Shakila. Zaidi through attorney and 8 others v. Hammad Asif Dosslani and others (2011 CLC 1011) and Fazal Karim through legal heirs and others v. Muhammad Afzal through legal heirs and others (PLD 2003 818).
4. On the other hand learned counsel for respondent No. 4 assisted by the other counsels appearing on behalf of the other respondents, contends that no disputed questions of fact are involved. The decree in favour of the present respondent No. 4 has been passed by the learned Trial Court which was upheld upto the Lahore High Court and respondent No. 4 has been declared an owner to the extent of five marlas. So 'the decree in favour of the petitioner in his suit is nullity in the eye of lawas it could not sustain in the presence of the decree of the present respondent No. 4.
Since the application under Section 12(2), CPC of respondent No. 4 is based on the documentary evidence i.e. Judgments and decrees of the Courts of competent jurisdiction upto the High Court, 'there was no need to frame any issue for setting aside the decree as it is not tenable to the extent of five marlas for which the petitioner has been declared entitled upto High Court. In the light of law laid down by the Hon'ble Supreme Court.
Reliance is. Placed on Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCM R 296), Nazir Ahmed v. Muhammad Sharif and others (2001 SCM R 46) and Warriach Zarai Corporation v. F.M.C. United (PVT.) LTD. (2006 SCM R 531).
5. I have considered the arguments of the learned counsel for the parties and perused the record besides weighing the judgments referred by both the sides. The ratio decidendi of the judgments observedly leads to the supposition that issues might have been framed where necessary arose but it is not a hard and fast rule that in every case, issues must have been .Framed. If the Court while deciding the application under Section 12(2), CPC reaches to this conclusion that sufficient evidence is available on the record, then the framing of issues and recording of evidence is not obligatory for the Court to decide the application under Section 12(2), CPC. Primarily, it is upto the Court where the application under Section 12(2), CPC is pending adjudication to decide whether framing of issues and recording of evidence is imperative, after considering the circumstances of the each case and this crucial aspect has been considered by the learned Trial Court and rightly held that the sufficient evidence is available to set aside the decree, that too, after providing the opportunity to all the concerned about the claim in the disputed property. Even otherwise, the decree which has been upheld in favour of respondent No. 4 upto this Court and his owner-ship has been declared on the basis of that decree, how that piece of land could be included in the decree in favour of the present petitioner and how the same could be allowed to hold the field. It was appropriate for the learned Trial Court to decide the suit for specific performance afresh after providing the opportunity of leading. Evidence about their claims so that the matter could have been settled once for all.
6. In the light of foregoing discussion on the subject , I find no illegality, irregularity and infirmity in the order passed by the learned Trial Court warranting interference by this Court. This petition has no merits and dismissed accordingly. No order as to costs.
Civil revision .