MIRZA VIQAS RAUF, J. The instant petition questions the vires of order dated 13th of November, 2012, whereby the learned Additional District Judge, Kasur while allowing the revision petition filed by respondents No.12 to 14 set aside the order dated 05th of April, 2011 passed by the learned Civil Judge III Calss, Kasur.
2. The facts in precision necessary for adjudication of instant petition are that the petitioners filed a suit for declaration, cancellation and permanent injunction against respondents No.1 to 10 before learned Civil Judge, Kasur. The same was decreed vide judgment dated 19th of February, 2011.
The respondents No.12 to 14, feeling aggrieved from the said judgment and decree filed an application under Section 12(2) of The Code of Civil Procedure (V of 1908) which was dismissed by the learned Civil Judge, Kasur by way of order dated 05th of April, 2011. The said order was then assailed in revision petition before the learned Additional District Judge, Kasur. The revision petition was allowed vide order dated 13th of November, 2012, hence this petition.
3. Learned counsel for the petitioners submitted that the respondents No.12 to 14 purchased the property by way of mutation during the pendency of the suit, so sale in their favour was illegal and unlawful. He added that the said sale cannot be protected under the law. Learned counsel maintained that the suit was rightly decreed by the learned Civil Judge and the application of respondents No.12 to 14 under Section 12(2) of The Code of Civil Procedure (V of 1908) was not maintainable. Learned counsel contended that the learned Civil Judge has rightly rejected the said application. Learned counsel argued that the learned Additional District Judge has committed an illegality while setting aside the order dated 05th of April, 2011.
4. Conversely, learned counsel for the respondents No.12(i) to 12(v) defended the impugned order and submitted that the revisional court has committed no illegality while setting aside the order passed by the learned Civil Judge. Learned counsel maintained that the respondents were bonafide purchasers and their rights are fully protected under the law. He further maintained that the learned Civil Judge rejected the application of the respondents without even framing any issue.
Learned counsel argued that the order passed by the learned Civil Judge was not tenable under the law and the learned Additional District Judge was right in his approach to set aside the same in exercise of its revisional jurisdiction.
5. I have heard the learned counsels for both the sides and perused the record with their assistance.
6. It is evident that except respondents No.12(i) to 12(v) all other were proceeded ex-parte vide order dated 20th of May, 2013, so the only resistance to this petition is on behalf of respondents No.12(i) to 12(v). It is an admitted position that the suit was filed on 16th of June, 2005 by the petitioners against respondents No.1 to 10 and during the pendency of the suit, the learned Civil Judge initially granted ad-interim injunctive order on 20th of June, 2005 which was later on affirmed by way of order dated 21st of October, 2009 and while passing the said order, the respondents/defendants were restrained from further alienating the suit property. The respondents No.12 to 14 purchased the suit property on 14th of June, 2010 which is clearly in violation of said order. Though respondent No.12 has pleaded ignorance of knowledge and asserted that being bonafide purchaser, his rights are protected but in such like cases principle of caveat emptor is equally applicable and in presence of injunctive order, he is precluded to agitate the plea of bonafide purchaser. Even otherwise when litigation in respect of the suit property was pending before the Court, such transfer was to be governed by the provisions of Section 52 of The Transfer of Property Act, 1882 which lays down that a transaction made during pendency of litigation cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court. Reliance in this regard can be placed on "INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN through Deputy Chief Manager versus SAADI ASMATULLAH and others" (1999 SCMR 2874) and "KHADIM HUSSAIN versus ABID HUSSAIN and others" (PLD 2009 Supreme Court 419). Leaving aside this discussion as to status of respondent No.12 and the fate of sale transaction in his favour, in my humble view, the only question which requires determination by this Court is "the competency of application under Section 12(2) of The Code of Civil Procedure (V of 1908) before the learned Civil Judge in the circumstances." Section 12(2) of The Code of Civil Procedure (V of 1908) provides three eventualities for challenging the validity of a judgment, decree or order which reads as under :- "12. Bar to further suit.-(1) (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
The respondent No.12 was obliged to prove the existence of any of the above narrated pre- requisites i.e. Fraud, misrepresentation and want of jurisdiction. As already discussed that the suit was filed on 16th of June, 2005, so at the time of filing of suit, respondent No.12 figures nowhere because he purchased the suit property on 14th of June, 2010, so no question arises of his impleadment in the suit. The respondent No.12 has failed to bring on record any tangible proof in support of his claim that the judgment and decree dated 19th of February, 2011 suffers infirmities as ordained in Section 12(2) of The Code of Civil Procedure (V of 1908). I have perused the application filed by respondents No.12 to 14 under Section 12(2) of The Code of Civil Procedure (V of 1908) which did not disclose any of the element of fraud, mis-representation or jurisdictional defect in the judgment and decree dated 19th of February, 2011.
7. The contention of the learned counsel for the respondents that the application under Section 12(2) of The Code of Civil Procedure (V of 1908) cannot be dismissed without framing of issues is mis-conceived and ill-founded. It is not a principle of universal application that in each and every case, the court is bound to frame the issues before deciding the fate of an application under Section 12(2) of The Code of Civil Procedure (V of 1908). Guidance in this respect can be sought from "NAZIR AHMED versus MUHAMMAD SHARIF and others" (2001 SCMR 46). The relevant extract from the said judgment is reproduced below :- "6. There can be no cavil with this proposition that the determination of allegations of fraud and misrepresentation ordinarily involve investigation into a question of fact and in such cases an inquiry is ordinarily to be held to decide the matter. But it is not in every case that Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit. The matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application the Court may in its discretion adopt any mode for its disposal. Whereas in the case in hand, as indicated hereinabove, the petitioner did not request the Court for recording of evidence and framing of issues. He even did not mention the fact that his relations with his brother were strained.
The litigation between his brother and other respondents ended in compromise. After lapse of so many years he filed application under section 12(2), C.P.C.
We have minutely gone through the order of the District Judge, Layyah, dated 13-5-1998 and carefully examined the findings of the learned Lahore High Court. In our opinion non-framing of issues and non-recording of evidence for the decision on the application under section 12(2), C.P.C.
Is not a condition precedent in this matter. This Court while deciding the case of Ghulam Muhammad v. M. Ahmad Khan and others (1993 SCMR 662) has observed as under:-- "It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. "
In Amiran Bibi and others v Muhammad Ramzan and others (1999 SCMR 1334) this Court has laid down the rule which reads as follows:-- "it is not the requirement of law that the Court while dealing with the allegation under section 12(2), C.P.C. Must in all circumstances frame issues, record evidence and follow procedure prescribed for decision of the suit. The question whether or not the issues are to be formulated and evidence of the parties recorded in resolving the allegations of fraud and misrepresentation, depends upon the facts of each case in consonance with justice. "
It was further observed that:-- "the impugned order was passed by the learned Judge in Chambers after hearing both the parties but the petitioners never sought permission to produce evidence in support of their application nor there was any prayer for formulation of issue at the time of hearing of the application."
The above principle has again been reaffirmed by this Court in Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 in the following terms:-- "While dealing with allegations under section 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 the suit."
8. Mere allegation of fraud is not sufficient to set at naught the judgment of a court of competent jurisdiction. The person asserting fraud has to bring on record sufficient and cogent material substantiating his plea of fraud. Perusal of impugned order dated 13th of November, 2012 reveals that the learned Additional District Judge while setting aside the order dated 05th of April, 2011 was mainly influenced with the fact that the learned trial court decided the fate of the application without framing of issues. Suffice to say that in view of principles laid down in the judgment supra there is no need of framing of issues in each and every case for deciding an application under Section 12(2) of The Code of Civil Procedure (V of 1908), so interference with the order of the learned Civil Judge by the learned Additional District Judge, Kasur was uncalled for. The learned Additional District Judge has erred in law while setting aside the well-reasoned order of the learned Civil Judge dismissing the application under Section 12(2) of The Code of Civil Procedure (V of 1908).
9. The order of revisional court is not a sacrosanct which cannot be interfered with in any of the circumstances. Whenever it is established that the revisional court has committed some illegality resulting into passing of an order which is perverse and per-functionary, this Court is competent to interfere with the revisional order in exercise of its Constitutional jurisdiction as ordained in Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973. Guidance in this respect can be sought from "MUHAMMAD ANWAR and others versus Mst. ILYAS BEGUM and others" (PLD 2013 Supreme Court 255) wherein the Hon'ble Supreme Court of Pakistan held as under :- "
12. The argument of the learned counsel for the petitioner that the order of the Revisional Court could not be interfered in the constitutional jurisdiction, because a Court having the jurisdiction to decide the matter, has the jurisdiction to decide it rightly or wrongly, and reliance having been placed upon the two judgments noted above; suffice it to say that in the noted dicta, the provisions of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 have not been taken into consideration, which reads as:-- "4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do "
Article 4 (ibid) mandates that it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and thus where an order has been passed by any forum or Court, including the Revisional Court, which is patently illegal and violative of law, especially the express provisions and the spirit of law, which (order) if allowed to stay intact tantamounts to, and shall cause serious breach to the legal rights of the litigants and shall cause prejudice to them, the learned High Court in appropriate cases while exercising its constitutional jurisdiction can ratify the illegality and violation of law, and undo the harm caused by the order of such (revisional) Court "
Even this Court in the case of "MUHAMMAD AKBAR versus MUHAMMAD MALIK and another" (PLD 2005 Lahore 1) while dealing with similar preposition has held that :- "7. Anyhow, as regards the objections of the learned counsel for the respondent, suffice it to say that, it is not an absolute rule that an order passed in revision, cannot at all be interfered in the Constitutional jurisdiction. In my view, where the justice demands, an exception can be taken thereto and the High Court besides Article 199 of the Constitution, can invoke its supervisory jurisdiction under Article 203 of the Constitution, to correct the orders, when are perverse, fraudulent, erroneous and have been passed either by express violation or the ignorance of any provision of law. Because the order of the learned revisional Court is of the above nature, therefore, I deem it proper to correct it in my Constitutional jurisdiction .."
10. For the foregoing reasons, the instant petition is allowed, consequently the order dated 13th of November, 2012 passed by the learned Additional District Judge, Kasur is set aside and the order dated 05th of April, 2011 passed by the learned Civil Judge III Class, Kasur is restored with no order as to costs.