MUHAMMAD NASIR MAHFOOZ, J.--- Petitioner, Mst. Rasheeda Begum through this constitutional petition, has assailed the judgment and decree dated 04.04.2016 passed by learned Additional District Judge/Izafi Zilla Qazi-VI, Swat whereby he, while setting aside the judgment dated 23.01.2015 passed by learned Civil Judge/Illaqa Qazi-III, Swat has dismissed the petitioner's application under section 12(2), C.P.C.
2. Brief facts of the case are that petitioner filed an application under section 12(2), C.P.C. for setting aside the decree dated 16.09.2004 passed on the basis of written compromise deed and on the basis thereof their joint statement was recorded in court. It is alleged that the decree was obtained on the basis of fraud and misrepresentation in order to expropriate their legal shares; that respondents Nos,1 to 8 submitted written statements and deceived the court and during pendency of the said suit an application for amendment was filed which was allowed on 20.04.2001; that some years ago petitioners demanded their legal shares in the legacy of their predecessor Qalandar and partition of the legacy but respondents denied the same and relied on the said compromise decree dated 16.09.2004 and despite several jirgas they refused to accept their request, hence present application under section 12(2), C.P.C. has been filed on 19.03.2014.
3. Respondents submitted an application under Order VII, Rule 11, C.P.C. on 24.06.2014 for dismissal of the said application.
4. Learned trial court after hearing parties allowed application under Order VII, Rule 11, C.P.C. and dismissed the application under section 12(2), C.P.C. through its order dated 23.01.2015 on cost of Rs,10,000/-. The petitioner challenged the said order in C.R. No,172/2016 before this court but the same was later on dismissed as withdrawn vide order dated 08.09.2016 being not maintainable and it was held that the petitioner would be at liberty to challenge the impugned orders before the proper forum subject to all legal and factual objections. Thereafter they preferred an appeal before the learned District Judge/Zilla Qazi Swat which was dismissed vide order dated 04.04.2016, whereafter petitioner filed the present writ petition challenging the impugned orders of learned courts below filed on 10.10.2016.
5. I have heard the arguments of learned counsel for the parties and perused the record.
6. At the very outset, it may be mentioned that an order for dismissal of application under section 12(2), C.P.C. is not appealable but the petitioner wrongly challenged the order of learned trial court in civil appeal that has been dismissed through the impugned order dated 04.04.2016. Even if wrong remedy is availed by any party then in view of judgment of Hon'ble Supreme Court of Pakistan, the delay occurring due to availing the wrong remedy is not condonable. The said judgment is reported as PLD 2016 SC 872. In addition to this ground the present writ petition is dismissed on the following reasons too.
7. The main thrust of the arguments of learned counsel for the petitioner is that on the basis of compromise deed dated 16.09.2004 respondents have deprived the petitioner from huge properties and only a fractional share has been given, and the application under section 12(2), C.P.C. is filed within the period of limitation from the date of knowledge. In this regard the original plaint which was decided or tile basis of compromise is worth perusal. This suit No,81/1 was filed on 25.08.1997 by one special attorney Azeem Khan who is husband of Mst.Darajo plaintiff No,4/petitioner No,4 herein. Whereas, the present application under section 12(2), C.P.C. is filed on 19.03.2014 by the same plaintiffs through one Abdul Lateef special attorney, who is son of the same special attorney Azeem Khan mentioned above.
8. Now in order to analyze his contentions in the light of record available on file, the period from the date of decree up to the date of filing of application under section 12(2) comes to about 10 years.
During all this period petitioners have sold considerable property from the suit property that fell into their share as a result of compromise decree even the registered gift deed No,34 dated 07.03.1996 and gift mutation No,928 dated 12.03.1996 and mutation No,251 dated 11.03.1996 attested thereon were cancelled on the basis of compromise decree and. fresh mutations attested.
Contention of petitioner of filing application under section 12(2), C.P.C. within period of limitation as provided by section 181 of Limitation Act, fizzles out when it is proved from record that the original suit was instituted by the father of special attorney, Abdul Lateef who has filed this application under section 12(2), C.P.C.
9. Considering the other aspects as reiterated during arguments that learned trial court was bound to frame issues and decide the application under section 12(2), C.P.C. after recording of evidence and that dismissal of said application under section 12(2), C.P.C. under Order VII, Rule 11, C.P.C. is void as Order VII, Rule 11, C.P.C. is not applicable to proceedings under section 12(2), C.P.C.
10.In this respect, the law as declared by august Supreme Court of Pakistan on framing of issues or not essentially framing issues while dealing with application under section 12(2), C.P.C. Relevant para No,4 from 2006 SCM R 531 is reproduced as under:- "4. It is well-entrenched legal proposition that the framing of issues depends on the circumstances of each case, nature of alleged, fraud and the decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate object of section 12(2), C.P.C. which is to avoid, protracted and the time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below which are already overburdened."
In 2002 SCM R 1761 para No,7 lays down as under:- "7. The petitioner does not deny his appearance in the court on 14.4.1999 and affixation of his thumb impression on the order sheet. The contention that the file was wrongly taken up on 14.4.1999 whereas the actual date of hearing was 11.5.1999 loses significance because he was present in the court along with his counsel who had also put his signatures for verification of the statement of the petitioner. The petitioner has not appended the application on which the orders were passed for fixation of the suit for 14.4.1999. it is also admitted by him that he was a party in the application under section 12(2), C.P.C. filed by Malla his real maternal uncle and attained knowledge of the impugned judgment and decree passed against him on 22.7.1999. No explanation has been given as to why he kept mum for a long period spreading over 8 years. No period of limitation is prescribed for presentation of application under section 12(2), C.P.C. so it falls under Article 181 of the schedule of Limitation Act, 1908 and could have been filed within three years of accruing of the right to apply, which had accrued in favour of the petitioner on 22.7. 1999." On the same analogy reference has been made to PLD 2002 SC 500 and 2009 SCM R 40.
Drawing wisdom from the precedent quoted above, it is established practice in civil cases that where contentions raised in the application under section 12(2), C.P.C. do not inspire confidence and material grounds of fraud and misrepresentation are not clearly spelt out from its contents then the same can be outrightly dismissed without recording evidence. As regards contention of learned counsel for petitioner that Order VII, Rule 11, C.P.C. is not applicable to application under section 12(2), C.P.C., suffice it to observe that proceedings of application under section 12(2), C.P.C. are not essentially proceedings of a suit but they are the same as in a suit with the only exception that after its acceptance the original suit/plaint is revived. Admittedly, conditions applicable to plaint are totally different from that as for application under section 12(2), C.P.C., but all the provisions of Civil Procedure Code are mutatis mutandis applicable, hence treated as suit. If applicability of Order VII, Rule 11, C.P.C. is ruled out even then if contents of application under section 12(2), C.P.C. does not contain specific accounts of fraud and misrepresentation and inspire confidence it can be dismissed summarily, as to avoid abuse of process of law and by unnecessarily dragging an innocent decree-holder in litigation.
11. In the present case, as a sequel to compromise petitioners/ plaintiffs' suit was decreed not dismissed, but on the terms as agreed in the compromise deed. Now the same plaintiffs assert .that the power of attorney in favour of Azeem Khan husband of petitioner No,4 did not authorize him to effect compromise, but since the son of same attorney has now filed this application under section 12(2), C.P.C. on behalf of the same plaintiffs. It is sufficient to hold that firstly, no fraud and misrepresentation has been committed to justify interference in the present constitutional petition.
Secondly, the contents of the application do not contain the specific allegation of fraud to implicate his father, previous attorney, in any fraud. It is also imperative to mention that the certificate appended with this civil revision is neither signed by any one of the parties or his attorney but signed only by their counsel. Moreover, on the rule of estopple too petitioner could not approbate and repprobate in the same series of litigation.
Resultantly, I hold that the learned courts below have rightly dismissed the application under section 12(2), C.P.C. without recording evidence through their well reasoned judgments/orders and therefore, petitioner failed to point out, any infirmity in the same, thus this writ petition is dismissed with no order as to costs.