SYED MUHAMMAD ATTIQUE SHAH, J.---The instant revision petition under section 115, C.P.C. is directed against the judgment and order passed by the learned District Judge, Mansehra dated 27.03.2009, whereby, petition No,78/6 of 2008 filed under section 12(2), C.P.C., was allowed.
2. Brief facts of the present revision petition as averred therein are that predecessor of respondent No,2 Badi-uz-Zaman obtained a loan of Rs,20,000/- from HBFC, Mansehra (respondent No,3) and in lieu thereof, he mortgaged his property bearing Khasra No,2348 measuring 1 Kanal situated in Mauza Mansehra vide registered mortgaged deed bearing No,303 attested on 20.07.1976; that respondent No,2 failed to pay the loan amount, as a result thereof, respondent No,3 moved an application under section 30 of the HBFC Act XVII of 1952 to the court of District Judge, Mansehra on 24.10.98 against respondent No,2 and obtained an ex-parte decree dated 06.03.2002 against him; that respondent No,3 filed execution petition against respondent No,2, who was not served, however, NBW and warrant of possession of the house in question was issued against respondent No,2 on 25.01.2003; that NBW was returned un-served, whereas, warrant of possession was returned with the report that the house in question was in occupation of one Moazzam Shah as mortgagee, who subsequently appeared in response to the notice of the Court and submitted his reply on 21.06.2003; that Moazzam Shah, predecessor of the petitioners moved an application to the effect that he was ready to deposit the original amount of the loan on behalf of the Judgment Debtor, respondent No,2 to which respondent No,3 was agreed and the learned District Judge, allowed the application vide order dated 17.02.2006; that in the meanwhile, the predecessor of the petitioners died and the proprietary/ownership rights were transferred to the petitioners and respondent No,2 was made liable to pay the entire dues to the petitioners, vide order dated 25.03.2008.
3. In the meanwhile, respondent No,1 filed an application under section 12(2), C.P.C. bearing No,78/6 of 2008 on 19.09.2008 in the Court of learned District Judge, Mansehra, challenging therein the ex-parte judgment and decree dated 17.02.2006 and order dated 25.03.2008 passed in case No,02/12 of 2006 titled HBFC v. Badi-uz-Zaman, on the ground that he had purchased 19-1/4 'Marlas' along with house from respondent No,2 through mutation No,64711 attested on 12.12.2006 in lieu of Rs,254,000/-; that the house in question was mortgaged by respondent No,2 with Predecessor of the petitioners, who later on paid the mortgage amount and got vacated the house and handed possession thereof to respondent No,1; that the house was again given to predecessor of petitioners for residential purpose, as he had no house in Mansehra that subsequently, respondent No,1 came to know about transfer of house and property in favour of petitioners in pursuance of order dated 25.03.2008 passed by District Judge, Mansehra; respondent No,1 claimed that he was bona fide purchaser and at the time of purchase, the suit property was not under any encumbrance, as no entries were made in the revenue record regarding the mortgage and the judgment/order was outcome of fraud and misrepresentation. The said application was only contested by the petitioners by filing their written reply, raising therein legal as well as factual objections.
4. The learned District Judge, Mansehra after hearing arguments of learned counsel for the parties, allowed the application vide judgment/order dated 27.03.2009 in the following terms: "Though element of fraud is not palpable on face of record but on this score application cannot be turned down. This can be treated an ordinary application for granting the desired relief. As this Court has directed and ordered that whenever the judgment-debtor namely Badiuz Zaman appears before the Court and claims the transfer of ownership in his favour he will have to pay the decretal amount along with markup by which commercial banks pay to their customer. The present applicant has stepped into their shoes, therefore, 1 while allowing the application direct the applicant to pay/deposit the decretal amount along with markup which will be worked out from commercial bank to respondents Nos,2 to 4 and on payment of the amount, the property will stand transferred in favour of the applicant. However, this transfer will remain subject to the rights of respondent No,1 if he in future denies or disputes transfer in favour of applicant. Besides, the applicant will approach proper forum for possession of property. Parties are to bear their own costs."
Hence, the instant revision petition before this Court.
3. Arguments heard and record available gone through.
4. Perusal of record would reveal that the petitioners have challenged the validity of impugned order of the learned District Judge, Mansehra dated 27.03.2009, whereby, application under section 12(2), C.P.C. filed by respondent No,1 was decided in his favour. Admittedly, the petitioners have acquired the mortgage rights in the disputed property, initially through mortgage deed dated 13.10.1977 and subsequently through order dated 17.02.2006 passed in the Execution Petition filed by HBFC/respondent No,3 in favour of Pir Moazzam Shah, predecessor of petitioners and subsequently, after his death the said ownership rights were transferred in favour of the petitioners on the basis of impugned order dated 25.03.2008. Mir Zaman, respondent No,1 also claiming ownership rights on the basis of Mutation No,64711 attested on 12.12.2006 on behalf of Badiuz Zaman, respondent No,2 / judgment debtor. The learned Court below while allowing the 12(2) petition of respondent No,1, has observed that there was no element of fraud and treated the said petition to be an ordinary application and set aside the impugned orders but in a very slipshod and cursory manner, without recording pro and contra evidence of both the parties despite having controversial and disputed questions. It is settled principle of administration of justice that Court is expected to pass orders after applying its mind in a judicious manner and not to act mechanically in order to non-suit the parties without any just, fair and reasonable cause. Learned counsel appearing on behalf of respondent No,1, however, could not legally justify the impugned order passed in his favour. It is settled that recording of evidence is not necessary in every case under section 12(2), C.P.C, however, where facts and circumstances of a case require recording of evidence qua factual aspects. then the parties should be provided opportunity to examine witnesses and produce documentary evidence. In this regard, the august Apex Court in Muhammad Nawaz Khan's case (2002 SCMR 2003), has held that: "The providing of the opportunity of hearing is not confined only to the extent of arguments rather the sufficiency or insufficiency of such right would depend upon facts and circumstances of each case and in its extended meanings if a case involves pure question of law, the oral address or written representation is sufficient but in case in which the matter needs some factual inquiry either through documentary evidence or oral testimony of the witnesses, the parties should he allowed proper opportunity to bring their evidence and also to examine the witnesses."
Reference is also given to the case titled 'Muhammad Altaf v. District Judge and 3 others' (2016 YLR 1191).
5. Thus, keeping in view the above noted facts, circumstances and discussion made herein above, this Court reached at the conclusion that the impugned order was passed in haste without adhering to the settled principles of law. Therefore, the present revision petition is allowed and the matter is remanded back to the learned Court below, with the direction to record evidence of the parties and decide the 12(2) petition afresh after affording opportunity of hearing to the parties, strictly in accordance with law.
Parties are directed to appear before the learned Court below on 26.11.2012.