' MAHMOOD AHMAD BHATTI, J. --- This revision petition is directed against the order dated 13.02.2013 passed by the learned Civil Judge, Lahore, whereby an application moved by the petitioner under Section 12(2), C.P.C. To challenge the legality and validity of the judgment and decree dated 09.04.2007 was dismissed.
2. Tersely stated, the facts are that Ch. Zaheer, the respondent instituted a suit for specific performance in respect of land measuring 10 Marlas, situated at 11-Egerton Road, Lahore, averring therein that the present petitioner appointed one Mian Fayyaz Mahmood as his General Attorney, who entered into an agreement to sell with the plaintiff for the sale of the suit land for a consideration of Rs. 1,00,00,000/-. Statedly, an amount of Rs. 25,00,000/- was received by him as earnest money at the time of execution of the agreement to sell dated 13.07.2006. The balance sale consideration was to be paid at the time of execution and registration of the sale-deed in favour of the plaintiff. The petitioner did not file the written statement, rather he got his statement recorded on 05.01.2007. Incidentally, the attorney of the petitioner also appeared on 15.02.2007. He made a detailed statement, conceding to the claim of the plaintiff. Even so, the plaintiff produced witnesses to prove the execution of the agreement to sell executed in his favour. Be that as it may, the learned Trial Court decreed the suit, as prayed for vide judgment and decree dated 09.04.2007.
Since no appeal was filed by the petitioner/defendant, the aforesaid judgment and decree attained finality. And yet, the petitioner filed an application under Section 12(2), C.P.C. Seeking to set aside the aforesaid judgment and decree dated 09.04.2007 on the ground that he was deceived by the decree-holder and that the two post-dated cheques bearing Nos. 1000292640, dated 12.08.2007 for a sum of Rs. 250000/- and 1000292639, dated 28.01.2008 for an amount of Rs.
3400000/- to be drawn on the Bank of Punjab, Mustafa Abad Branch, Lahore were not encashed. In other words, they were dishonoured, forcing the petitioner to file an F.I.R. Against the decree-holder.
However, the F.I.R. Was quashed by this Court on 06.05.2010 in consequence of Writ Petition No. 4446 of 2010. A private complaint filed by the petitioner was also dismissed. In the interregnum, the petitioner filed the petition under Section 12(2), C.P.C. As stated above, the learned Civil Judge, Lahore dismissed this application vide order dated 09.04.2007. Hence this revision petition.
3. In support of this petition, the learned counsel for the petitioner submits that it stood established on the record that no consideration was ever paid by the decree-holder to the petitioner. He further argues that the decree dated 09.04.2007 was procured by carrying out deception and perpetrating fraud upon the Court as well as on the petitioner. He adds that it was incumbent upon the learned Court below to take into consideration all the circumstances surrounding the passing of the .
Decree in favour of the respondent. According to him, the application of the petitioner was disposed of in a cursory and slipshod manner, warranting the interference of this Court under Section 115, C.P.C.
4. Conversely, the learned counsel for the respondent has supported the impugned order passed by the learned Court below. He has put forth the argument that the petitioner himself came forward to make a statement. At the time, it was riot complained of by him that some pressure was being brought to bear upon him to concede to the claim of the respondent. It has also been underscored by him that at no stage was it denied by the petitioner that he did not constitute and appoint Mian Fayyaz Mahmood as his attorney or that his powers were circumscribed or that he was not vested with any authority to make a sale agreement with the respondent. He concludes by making the submission that if at all the petitioner has any grievance with regard to the cheques received by him, he might institute a suit under Order XXXVII, C.P.C. For the recovery of the amount stated therein.
5. I have heard the learned counsel for the parties and gone through the record with their assistance.
6. From a perusal of the record, it has transpired that the suit of the respondent was decreed in the wake of the statement made by the petitioner before the learned Trial Court. Obviously, no misrepresentation was made to the Court nor did the respondent commit any fraud upon the Court to have a decree passed in his favour. It is well-established law that if no fraud has been perpetrated in the course of the proceedings, provisions of Section 12(2), CPC would not be attracted. In this respect, reference may well be made to the judgments reported as "Shah Hanif and 20 others v. Col. Yar Muhammad Khan and 7 others" [2000 M LD 1740] (Peshawar), "Miss Shazia Ashraf v. Municipal Committee, Sahiwal through Administrator and another" [2006 CLC 1018] (DB Lahore) and "Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation" [2002 CLC 166] (DB Karachi). It is also evident from the record that the petitioner lodged an F.I.R. No. 44/2010, dated 16.01.2010 against the respondent under Section 489-F, PPC at police station Old Anarkali, Lahore. However, this F.I.R. Was quashed vide order dated 06.05.2010 passed in Writ Petition No. 4446 of 2010, in which the details as to the civil litigation carried out between the complainant and the accused were also set out. Again, it has not been denied that a private complaint filed by the petitioner was dismissed as well. Against this backdrop, the petitioner seems to have made a last-ditch effort to pressurize the respondent into coughing up some money. I am deliberately not making any comments as to the fate of the cheques issued by the respondent to the petitioner. If the petitioner has any grievance and claim against the respondent, he might institute a suit for the recovery of money, but he cannot assail the judgment and decree dated 09.04.2007 by filing a petition under Section 12(2), CPC. This is not at all. It was held by the Honourable Supreme Court of Pakistan in the case of G.R. Syed v.
Muhammad Afzal (2007 SCM R 433) that under Order XII, Rule 6, C.P.C., a decree might be passed on the clear, unambiguous, categorical and unequivocal admission made by a defendant. This is exactly what was done by the learned Trial Court.
7. There is another facet of this issue. Under Section 96, C.P.C., an appeal does not lie against a consent decree. It is well-established law that what cannot be achieved directly is not to be allowed to be achieved indirectly. If the petitioner did not file an appeal to call into question the validity of the judgment and decree dated 09.04.2007 and rightly so, how could he be allowed to challenge its vires by an indirect means through an application under Section 12(2), C.P.C? On the face of it, the application so moved by him was misconceived and untenable and was rightly dismissed by the learned Court below.
8. For what has been stated above, this revision petition is devoid of merits, which accordingly is dismissed. Civil revision .