SHAHID WAHEED, J.---The genesis, of this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is the suit which was instituted by respondent No.1 seeking a decree against the petitioner for recovery of Rs.10,261,231/-. During trial of the said suit Mirza Shabbir Hussain, Advocate by filing his power of attorney entered appearance on behalf of the petitioner. Subsequently, Mr. Abdul Samad Khan, Advocate filed his power of attorney on behalf of the petitioner. On 07.05.2008 written statement was filed and thereafter the case had been adjourning for hearing arguments on the respondent No.1 's application under Order XXXVIII, Rules 5 and 8 read with Order XXXIX Rules 1, 2 and 151, C.P.C. Vide order dated 09.10.2009 the petitioner was proceeded against ex-parte and the said application was allowed. On the next date of hearing i.e. 21.10.2009 the Trial Court without framing issues recorded ex-parte evidence. After appraising evidence, the suit of respondent No.1 was decreed as prayed for vide judgment dated 10.11.2009.
The decree sheet of even date was accordingly prepared.
2. On 16.12.2009 the respondent No.1 filed an application for the execution of decree dated 10.11.2009 through attachment of property and arrest of the officials of the petitioner-company. The Executing Court vide order dated 05.03.2010 issued non-bailable warrant of arrest of the Chief Executive of the petitioner-company, Bilal Ahmad. In compliance with said order the Chief Executive was arrested and produced before the Executing Court on 25.03.2010. On the said date Bilal Ahmad was released on bail subject to furnishing surety bonds in the sum of Rs.10.00 million.
Subsequently, on 06.04.2010 the properties of the petitioner-company were ordered to be attached. Vide order dated 04.06.2010 the Executing Court appointed court auctioneer for sale of the attached property through public auction.
3. Before the date of auction, the petitioner on 06.07.2010 filed three applications: firstly, application under section 12(2), C.P.C. for setting aside judgment and decree dated 10.11.2009; secondly, application under Order XXI Rule 26, C.P.C. before the Executing Court seeking stay of auction proceedings; and, thirdly, application under Order XXI Rule 23, C.P.C. seeking, inter-alia, dismissal of the execution petition.
4. The Trial Court vide order dated 06.07.2010 issued notice on the application under section 12(2), C.P.C. and stayed the execution proceedings subject to deposit of Rs.1.00 million in the Court. Order dated 06.07.2010 reads as under:-- "This is a petition under section 12(2), C.P.C., be registered accordingly. Let notices be issued to the respondent for 14.07.2010 through registered post A.D. and TCS.
2. Objections raised in the petition needs further consideration, therefore, subject to payment of Rs.10,00,000/- into the court, the auction proceedings are stayed, till next date of hearing. However, this order shall not affect any legal act or proceedings of any competent court."
The above cited order was not complied with and, therefore, another opportunity was granted to the petitioner to deposit sum of Rs.1.00 million vide order dated 28.10.2010, which is to the following effect: "Arguments on the following applications from both sides have been heard at considerable length:-- (i)APPLICATION UNDER SECTION 151, C.P.C. READ WITH ORDER XXXVIII RULE 10, C.P. C. FILED BY THE PETITIONER PERVAIZ TANVEER TUFAIL.
(ii)OBJECTION PETITION UNDER ORDER XXI RULE 23, C.P. C. FILED BY THE JUDGMENT DEBTOR.
(iii)APPLICATION UNDER SECTION 12(2), C.P.C. FOR SETTING ASIDE DECREE OBTAINED THROUGH FRAUD FILED BY THE JUDGMENT DEBTOR.
(iv)APPLICATION UNDER ORDER XXI, RULE 26 FILED BY THE JUDGMENT DEBTOR.
The court order dated 06.07.2010 has not been complied with by the judgment debtor whereby he was required to deposit an amount of Rs.01/- million into the court, therefore, the judgment debtor is required to make compliance of said order till the next date of hearing otherwise all the above miscellaneous applications shall stand dismissed. Now to come up for 06.12.2010. "
The petitioner felt aggrieved by the orders qua the deposit of Rs.1.00 million and filed petition seeking review of order dated 28.10.2010. This review petition was left undecided and the Trial Court dismissed the main case i.e. application under section 12(2), C.P.C. for non-deposit of amount vide following order dated 05.04.2011: "Proxy counsel for judgment debtor has left the court after making his attendance. In continuation of short order dated 06.07.2010 and 28.10.2010, the judgment debtor has not deposited an amount of Rs.01 million into the court. The judgment debtor has failed to show his bona fide, therefore, all the following applications stand dismissed:- (i)APPLICATION UNDER SECTION 151, C.P. C. READ WITH ORDER XXXVIII, RULE 10, C.P.C. FILED BY THE PETITIONER PERVAIZ TANVEER TUFAIL.
(ii)OBJECTION PETITION UNDER ORDER XXI RULE 23, C. P. C. FILED BY THE JUDGMENT DEBTOR.
(iii)APPLICATION UNDER SECTION 12(2), C.P.C. FOR SETTING ASIDE DECREE OBTAINED THROUGH FRAUD FILED BY THE JUDGMENT DEBTOR.
(iv) APPLICATION UNDER ORDER 21, RULE 26 FILED BY THE JUDGMENT DEBTOR.
The decree holder has submitted list of articles for attachment and the sale. The attachment has already been ordered. As the judgment debtor is prevaricating and trying to frustrate the court proceedings, therefore, I do not feel need to issue show cause and the attached articles are put on open auction.
2. The court auctioneer has already been appointed named Mr. Sikandar Javed, Advocate (Cell No.03006359218) vide order dated 04.06.2010. He is directed to put the attached articles on auction under the following schedule; - I Notice to the parties and affixation of proclamation notice outside of the court20.04.2011 IIProclamation on the spot 05.05.2011 IIIAuction of the spot 20.05.2011 Now to come up for report of auction for 25.05.2011. "
Again an application was filed by the petitioner seeking recalling of above stated order dated 05.04.2011. This application was declined vide order dated 28.05.2012 by invoking the provisions of section 11, C'.P.C. The orders dated 28.10.2010, 05.04.2011 and 28.05.2012 were challenged through a revision petition under section 115, C.P.C. This revision petition could not evoke a favourable response and, therefore, the same was dismissed vide judgment dated 15.05.2017 by the Additional District Judge, Lahore.
5. The petitioner is aggrieved by the orders of the courts below. The petitioner's counsel press this only to the extent of orders of the courts below passed on the application under section 12(2), C.P.C.
He requests that an order in the nature of writ of certiorari be issued for quashing the orders of the courts below in respect of the application under Section 12(2), C.P.C.
6. It is contended on behalf of the petitioner that maintainability of application under section 12(2), C.P.C. could not be made contingent upon the prior deposit of sum of Rs.1.00 million in the Court; that requirement to deposit sum of Rs.1.00 million amounted to place embargo on the petitioner's right to challenge the decree on the basis of fraud under section 12(2), C.P.C.; and, that the orders of the Courts below are void and, therefore, the same cannot be allowed to sustain. Responding to the above noted arguments learned counsel for respondent No.1 submits that conduct of the petitioner was contumacious and, therefore, it was not entitled to any relief; and, that the petitioner through this petition seeks to frustrate the execution of money decree, which was validly issued by the Trial Court.
7. The pivotal moot point which requires determination is whether the Trial Court could dismiss the petitioner's application under section 12(2), C.P.C. for non-deposit of Rs.1.00 million in the Court.
Perusal of order dated 06.07.2010 transpires that deposit of Rs.1.00 million was not the condition precedent to entertain the application under section 12(2), C.P.C. This condition at best could be relevant for the application under Order XXI, Rule 26, C.P.C. seeking stay of auction proceedings.
Admittedly, this condition was not complied with and, therefore, the Trial Court on the next date of hearing (i.e. 28.10.2010) had two options, that is, either to dismiss the application tinder Order XXI, Rule 26, C.P.C. or extend the time to deposit the amount of Rs.1.00 million. On the contrary the Trial Court vide order dated 28.10.2010 not only directed the petitioner to deposit Rs.1.00 million into the Court but also administered a warning that in default its three applications would stand dismissed.
It was not proper, and, therefore, gave a fillip to the petitioner to file a petition seeking review of order dated 28.10.2010. This petition even could not budge the Trial Court to notice the error. The Trial Court let the error alone and committed another irregularity. As per principle settled in the cases of "Muhammad Umer v. Muhammad Qasim and another" (1991 SCMR 1232) "Azra Manzoor Qureshi v. Faysal Bank Limited and 2 others" (2005 CLD 1417), and "Muhammad Azam v.
Muhammad Abdullah through L.Rs." (2009 SCMR '326) the Trial Court was required to first decide the review petition and thereafter to proceed further in the matter. It was not done. The Trial court left the review petition undecided and dismissed the main case i.e. application under Section 12(2), C.P.C. for non-deposit of Rs.1.00 million vide order dated 05.04.2011. It was a material irregularity and for this reason the final order dated 05.04.2011 stood vitiated. Even otherwise, there is no provision of law for imposition of condition to deposit certain amount for taking cognizance of an application under section 12(2), C.P.C. In fact the imposition of condition to deposit Rs.1.00 million was not only against the Islamic dispensation of justice but also violative of the provisions of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantee fair trial for determination of rights of the parties. This aspect of the matter suggests that the courts below exercised their jurisdiction illegally and with material irregularity while passing the above stated orders and declining application under section 12(2), C.P.C.
8. Another aspect of the case is that the Trial Court while declining the application under section 12(2), C.P.C. has not recorded any reason. It is an established principle of law that a judicial order must be a speaking order manifesting by itself that the Court has made an endeavor for the resolution of the issues involved for their proper adjudication. It is essential that Judge should accord fair and proper hearing to the persons sought to be affected by his orders and give sufficiently clear and explicit reasons in support of orders made by him. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice and this rule must be observed in its proper spirit and mere presence of compliance with it, would not satisfy the requirement of law. In the instant case the impugned orders of the Courts below with respect to application under Section 12(2), C.P.C. are bereft of any reason and, therefore, the same are not valid in the eye of law.
9. The allegations of the application under section 12(2), C.P.C. are that the petitioner never engaged a counsel but respondent No.1 through misrepresentation and fraud maneuvered the process or proceedings of the Trial Court in such a way that his fraudulent acts appeared to be natural, that is, (i) delayed service of notice; (ii) submission of memo. of appearance and then power of attorney; (iii) change of counsel: (iv) filing of fake written statement and reply to stay application (v) seeking time and adjournments for arguments on behalf of the company; (vi) making it appear as if the petitioner had lost interest in the proceedings; and, (vii) obtaining orders for ex-parte proceeding. These allegations are serious in character and thus the Trial Court was required to apply its mind to the said allegations and determine the same by giving cogent reasons. Failure to determine the said allegations and dismissal of application on technical grounds was nothing but negation of justice and the spirit of law, that is, to resolve dispute between the parties on merits. Thus orders of the courts below being perverse are liable to be set aside.
10.In the sequel, this petition is accepted and judgment dated 28.05.2012 of the Revisional Court and impugned orders of the Trial Court qua the application under section 12(2), C.P.C. are set aside and declared to have been passed without lawful authority and of no legal effect. Consequently the petitioner's application under section 12(2), C.P.C. shall be deemed to be pending before the Trial Court which shall decide the same afresh in accordance with law. Since valuable rights of the parties are involved, the Trial Court is directed to decide the said application within a period of six months.