' AMIN-UD-DIN KHAN, J. --- Through this writ petition petitioners have challenged the judgment/order dated 31.01.2006 passed by the learned Additional District Judge, Sialkot whereby revision petition filed by the respondents was accepted and the order dated 20.10.2005 passed by learned Civil Judge Class 11, Sialkot was set aside whereby application under Section 12(2) of the CPC filed by the petitioners was accepted.
2. Brief facts of the case are that plaintiff/respondent No, 1 filed a suit for declaration with regard to the land measuring 38 kanals, 4 marlas with the assertion that through oral sale the suit property has been transferred by the three defendants in their favour and decree for declaration of title was sought on the ground that the property is situated outside the municipal limits, therefore, Registration Act is not applicable and the mutation is to be sanctioned in their favour. As per record of the learned Trial Court on 9..1996 all the three defendants appeared before the Court in person as well as their counsel Mr. Aziz Ah mad Khan, Advocate appeared and got recorded a conceding statement and the learned Trial Court decreed the suit on the basis of conceding statement of the defendants on the same day i.e, 9.5.1996. On 23.4.1999 the defendants filed an application under Section 12(2) of the CPC against the plaintiff of the suit as well as Mr. Aziz Ahmad Khan, Advocate who appeared on their behalf in the suit. The grounds mentioned in the application were that a forged and fictitious, based upon fraud suit was filed title of which is "Pakistan Cargo Services (Pvt.)
Limited v. Zahur Ahmad etc." It is contended in the application that the fictitious and based upon fraud suit was got decreed within a period of 14 days with the connivance of the Court on 9.5.1996.
The grounds mentioned in the application are that Zahoor Ahmad was never appointed Attorney by the other defendants, the suit was fictitious and fraudulent and sale in favour of plaintiff has been denied. It is mentioned that in the fictitious and based upon fraud suit no summons were received by the defendants/applicants. It is further mentioned that after procuring the illegal decree dated 9.5.1996 respondent No 1/plaintiff got sanctioned mutation on 6.7.1998 with regard to the suit property in his favour. It is further pleaded that after procuring a decree fictitiously decree- holder got filed a suit for pre-emption against it by Abdul Razzaq son of Nazar Muhammad Lumberdar with whom applicants-defendants have a longstanding litigation as well as rivalry but in the same breath it is stated that petitioners came to know about filing of pre-emption suit through children of said Abdul Razzaq. It is further pleaded that mutation in favour of plaintiff- respondent No, 1 on the basis of fraudulent decree is No, 123 attested on 6.7.1998, it is not binding upon the rights of the applicants. It is further stated that when they came to know about the attestation of mutation the plaintiff-respondent No, 1 was asked to get the mutation reversed in favour of the applicants as they are poor persons and cannot afford the litigation expenses but when refused first time on 25.4.1996 and last time one week before filing of the application, therefore, the application.
3. Reply was filed. In reply case of the plaintiff that there is an agreement to sell with regard to the suit property between plaintiff and defendants through Zahoor Ahmad one of the defendants dated 5.1.1995 and the agreement was extended vide agreement dated 8.7.1998 and it is further mentioned that the suit property was pledged with the bank and matter was pending before the learned Judge Banking Court. On facts it is stated that since the date of decree the delivery of possession and sowing of crop is in the knowledge of the applicants. It is further mentioned that applicants appeared in person before the Court and their counsel also appeared and their Identity Card numbers were also mentioned when their statement was recorded by Malik Ghulam Muhammad, Civil Judge, Who passed the decree in the suit. It is further mentioned that the power- of-attorney in favour of one of the defendants Zahoor Ahmad is registered one and same has not been cancelled, therefore, the stance taken by the applicants is absolutely against the law. It is further stated that the part of the suit property was exchanged and the pre-emption suit filed by Abdul Razzaq is also in the knowledge of the applicants from the day first, therefore, application is barred by time and not maintainable and has been filed mala fidely.
4. Learned Trial Court framed the issues, invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned Trial Court not only accepted the application but set aside the judgment and decree passed by the learned Trial Court and it was ordered to the DDOR to reverse the mutation in favour of the decree-holder. Respondent No, 1 being aggrieved by the judgment passed by the learned Trial Court whereby the application filed under Section 12(2) of the CPC was accepted, filed a revision petition which has been accepted by the learned revisional Court and the order passed by the learned Trial Court accepting the application under Section 12(2), dated 20.10.2005 has been reversed. Hence, this writ petition by the applicants of application under Section 12(2) of the CPC.
5. Learned counsel for the petitioners argues that suit was to be filed for specific performance on the basis of agreement to sell and further that the application under Section 12(2) of the CPC has been filed on the basis of misrepresentation and fraud and for want of jurisdiction. Learned counsel argues that when the suit property was mortgaged with the Bank and matter was pending before the learned Judge Banking Court, therefore, the transaction claimed by the plaintiffs-respondents was hit by Section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. States that when possession was claimed, the plaintiff was required to pay the Court-fee. States that when sale was claimed on the basis of oral agreement to sell, therefore, pleading in detail date, time and place and names of the witnesses were necessary. States that when evidence was recorded in the application under Section 12(2) of the CPC the case pleaded by the plaintiff- respondent that he has purchased the suit property for Rs, 11,50,000/-, therefore, argues that agreement to sell dated 22.12.1994 has been produced as Exh.A20 which contains allegedly the signatures of Zahoor Ahmad only and does not contain the signature of the purchaser Pakistan Cargo Services (Pvt.) Limited. Same is the position of agreement of extension of time Exh.A19. It is further argued that the suit was pending before the learned Civil Judge Class-II, who was having pecuniary jurisdiction of Rs, 50,000/- at that time. Further argues that Mr. Aziz Ahmad Khan, Advocate appeared as RW-2 and he has admitted that he is working with Pakistan Cargo Services
(Pvt) Limited since the year 1992. Finally argued that when in the plaint-there is no mention of agreement to sell and payment under the agreement, same cannot he considered. Prays for acceptance of the instant writ petition.
6. On the other hand, learned counsel for respondent No 1 argues that as it was settled between the parties that through the decree of the Court which was used as a tool, the suit property was got transferred with the consent of the writ petitioners, therefore, states that there was no need to mention full details in the plaint and when plaint was admitted by the defendants and the stance of the plaintiff was accepted, therefore, the learned Trial Court has rightly decreed the suit and filing of application under Section 12(2) of the CPC was mala fide. Argues that none of the ingredients necessary to prove for invoking jurisdiction of the Court under Section 12(2) of the CPC has been proved, therefore, findings of the learned revisional Court are in accordance with law and there is no defect in it and learned Trial Court fell in error While accepting the application under Section 12(2) of the CPC. Further states that the cross-examination upon Zahoor Ahmad is very important who admitted the stance of respondent No, 1 with regard to pendency of the suit and states that through the pay orders and cheques the payments were made in the Banking Court when the suit property was put to auction on the ground that same was mortgaged with the ADBP and in execution the Court was going to auction the property. Learned counsel has referred the documentary evidence produced by respondent No, 1 in the Trial Court of application under Section 12(2) of the CPC to show that the payments were made and the pay orders were submitted which match with the order passed by the learned Judge Banking Court dated 9.6.1995 when the pay order on 14.6.1995 for a sum of Rs, 1,47,281/- was produced which shows that the same was paid under the orders of the Court from the account of Pakistan Cargo Services. With regard to possession of the suit property refers interim order passed by this Court on 5.12.2006 to state that possession of respondent No, 1 has been admitted by this Court as well as the writ petitioners.
States that respondent No, 1 is a limited company, suit has been filed through Chief Executive which was validly filed and writ petitioners have no right to challenge the same. States that in the special circumstances of the case the suit has rightly been filed for declaration and there was no need to ask for specific performance. Prays for dismissal of the writ petition.
7. I have heard learned counsel for the parties at length and gone through the record with their able assistance.
8. I am clear in my mind that when a party comes to the Court through an application under Section 12(2) of the CPC it is the responsibility of that party to prove, one of or all the grounds on the basis of which the application under Section 12(2) of the CPC has been filed. As in the instant case all the three grounds i.e, fraud, misrepresentation or want of jurisdiction have been pressed, therefore, instant matter can be adjudged. Firstly on all the three grounds pressed by the applicants-petitioners before the learned Trial Court through application under Section 12(2) of the CPC the fact or the Court record is that a suit for declaration was filed on 25.4.1996 by respondent No 1 and defendants/petitioners appeared in person as well as counsel filed power-of-attorney on their behalf and got recorded the statement on 9.5.1996 and put their signatures in the margin of their statement that they admit the suit and they have no objection if the suit is decreed and vide judgment and decree of the same date the suit was decreed. Application under Section 12(2) of the CPC was filed on 23.4.1999 i,e. About three years after passing of the decree. I have minutely gone through the application filed under Section 12(2) of the CPC in which in Para-3 the main thrust is that with the connivance of the Court a decree has been procured. I quote Para 3 of the application for ready reference:--- (sic)
' In Para 4 the grounds for acceptance of application under Section 12(2) of the CPC have been mentioned. In none of the grounds it is mentioned that defendants-applicants never appeared before the Court on 9.5.1996 and got recorded their statement. Needless to state that for pressing fraud the same is to be pleaded with full detail, no detail has been mentioned, even as I have noted supra appearance before the Court and recording of their statement and their signatures upon the order sheet have not been denied by the defendants/applicants, therefore, matter of misrepresentation is not even pleaded and fraud has not been mentioned, which was required to be pleaded with detail. The third part which relates to jurisdiction of the Court, is concerned, when the suit was valued for Rs, 22,000/- admittedly the learned Civil Judge Class-II was having the pecuniary jurisdiction of Rs, 50,000/-at that time, therefore, the suit was within the jurisdiction of the learned Trial Court when defendants of the suit have not disputed the jurisdictional value of the suit, and got recorded their conceding statement. The main ground of attack through filing application under Section 12(2) of the CPC against the judgment and decree dated 9.5.1996 that same has been procured with the connivance of Court ( ) not a single word in oral evidence has been uttered by the applicants or an iota of documentary evidence has been produced to this effect.
9. All the other objections which have been argued in detail before this Court can be considered if the applicants/petitioners were able to prove the basic ingredients, for invoking the jurisdiction of a Court under Section 12(2) of the CPC, none of the necessary ingredients has been proved for invoking the jurisdiction under Section 12(2) of the CPC, therefore, the other objections now raised or came on the surface during the proceedings and recording of evidence on application under Section. 12(2) of the CPC on behalf of both the parties are not directly relevant in my view in the above circumstances. I am conscious of the fact that while ' exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court cannot afford to go into the factual controversy between the parties and matter of interpretation or reinterpretation of evidence of the case available on the file. I have to consider the legal points on and nothing more.
The learned revisional Court considered the evidence available on the file to note that the payment made by the plaintiff through cheques and drafts matches with the payment received by the Banking court on behalf of the applicants who were defendants/judgment-debtors before the Banking Court for release of their mortgaged property. I he payment was made through cheques and drafts by the plaintiff of the instant litigation. To strengthen this fact learned counsel for the respondents relies upon "Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another" (PLO 2008 Supreme Court 591) and "Warriach Zarai Corporation v. F.M.C. United (Pvt.) Limited" (2006 SCMR 531). I am of the considered view that when a party comes to the Court and asks the Court to adopt a specific procedure for determination of a /is before the Court thereafter that party cannot use any deviation from the normal procedure saying that it was detrimental to the rights of that party. As I have noted supra that when the applicants-defendants appeared before the Court and made a statement that suit be decreed, therefore, now the objection does not lie in their mouth that suit should have been for specific performance and property was pledged with the Bank and under Section 23 of the Financial Institution Recovery of Ordinance, 2001 the agreement of sale, transfer of property and suit was not competent and saying that the proper Court-fee was hot paid, these objections have absolutely no value when plaintiff appeared and made a statement before the Court and further stating that date, time and place of the agreement and the witnesses were not mentioned in the suit and further that when the agreement was for Rs, 11,50,000/-, therefore, suit was not competent before the CIvil Judge Class-II and the last argument that when agreement has not been mentioned in the plaint, therefore the findings with regard Ix- payment of the consideration amount cannot be looked I am clear in my mind that these objections and arguments raised before this Court have absolutely nip value. Light can be taken from "Batu Jan Muhammad and others v. Dr. Abdul Ghafoor and others" (PLD 1966 Supreme Court 461). I am of the further view that a part cannot take the benefit of his own wrong. These objections could have been considered only if the petitioners were able to prove misrepresentation and fraud committed by the plaintiffs of the suit. As I have noted supra that no ingredient of application under Section 12(2) of the CPC has been proved by the applicants/petitioners, therefore, all their objections raised are not considerable. Needless to state that presumption of truth is attached to the judicial proceedings. Strongest and unimpeachable evidence is required to displace this presumption. Light can be taken from "Muhammad Zaman v. Abdul Ghaffar and three others" (PLD 1980 Lahore 582), "Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others" (PLO 1983 Supreme Court 68) and "Fayyaz Hussain Akbar and others" (2004 SCMR 964). So far as question that the plaintiff being a company has not produced the resolution, learned counsel states that during the revision petition resolution has been produced which shows that the pi evious proceeding/actions by the Chief Executive of the Company have been validated In this regard judgment of the august Supreme Court of Pakistan reported as "Mushtaq Ahmad and other Muhammad Saeed and others" (2004 SCMR 530) can be relied upon.
10. In this view of the matter, the factual findings recorded by the learned revisional Court need no further examination or interpretation and legal position has been discussed supra. Resultantly, no case for interference by this Court has been made out, therefore. This writ petition stands dismissed.