Through this writ petition, the petitioner has challenged the vires of order dated 06.03.2017 passed by the learned Civil Judge, Lahore who dismissed the application under Section 12(2), CPC filed by the petitioner and also assailed order dated 09.07.2019 passed by the learned Addl. District Judge, Lahore who dismissed the revision petition of the petitioner .
2. Brief facts of the case are. that Respondent No. 1/plaintif f, Munir Ahmad Lodhi filed suit for specific performance with permanent injunction and consequential relief against the petitioner/ defendant with regard to plot bearing Khasra No. 767, Khewat No. 420, Khatooni No. 1016 measuring 3 Marlas situated in Hadbast Mouza Jia Musa, Tehsil and District Lahore which was decreed by the learned trial Court vide judgment and decree dated 17.01.2013. The petitioner filed application under Section 12(2) CPC for setting aside the judgment and decree which was dismissed by the learned trial Court vide order dated 06.03.2017. Revision petition of the petitioner was also dismissed by the learned revisional Court vide order dated 09.07.2019. Hence, this writ petition.
3. I have heard the arguments advanced by the learned counsels for the parties at full length and gone through the record with their able assistance.
4. The petitioner in his application under Section 12(2), CPC has categorically stated that he neither executed the alleged agreement to sell nor received any consideration from Respondent No. 1, nor appointed Respondent No. 2 as his special attorney nor received any notice in the main suit from the trial Court; that Respondent No. 1 had business terms with Respondent No. 2 and they with, inter se, collusiveness got filed written statement on behalf of the petitioner through Respondent No. 2 as his special attorney just to deprive the petitioner from his valuable property . As the petitioner had never appeared before the Court, as such all the proceedings regarding his appearance and filing of written statement etc. are fake and based on fraud and misrepresentation. Respondent No. 1 while filing reply to the said application evasively denied the allegation contained in the application against him.
5. Perusal of the contents of the application under Section 12(2), C.P.C. reveals that it prima facie contains serious allegations of forgery , fraud and misrepresentation which could only be decided after framing of issues and recording evidence whereas the summary dismissal of the application would frustrate the ends of justice.
Reliance is placed on the case titled as Muhammad Nawaz Khan vs. Muhammad Khan and 2 others (2002 SCMR 2003 ) wherein the Hon'ble Supreme Court of Pakistan has held as under: "The petitioner has raised an important question relating to the concealment of material fact by the parties in the appeal and it being a mixed question of law and facts would need proper determina tion through detailed scrutiny of facts with or without recording of evidence as the case may be."
Reliance is also placed on the case titled as Lahore Development Authority through Director-General vs. Arif Manzoor Qureshi and others (2006 SCMR 1530 ) wherein the Hon'ble Supreme Court of Pakistan has held as under: "5. We have heard the learned counsel for the parties at length and have also perused the available record. We find that the application under Section 12(2), C.P.C. of the petitioner disclosed serious allegations of fraud, collusion and misrepresentation culminating into the judgment and decree dated 22-7-1998. From the very nature of the allegations of the petitioner , summary disposal of the application under Section 12(2), C.P.C was not justified.
In the facts and circumstances of the case, it is necessary for the trial Court to have framed necessary issues and recorded evidence of the parties particularly when the judgment and decree, dated 22-7-1998 had also been passed without recording evidence of the parties. The learned counsel for the petitioner as well as the Director- General of the Authority brought to our notice that an inquiry had also been held and finalized as directed by this Court in respect of the property in dispute. The impugned judgment passed by the High Court is not sustainable at law."
Another reliance is placed on the case titled as Muhammad Akram Malik vs. Dr. Ghulam Rabbani and others (PLD 2006 SC 773 ), relevant portion whereof is reproduced as under: "4. We have examined the above-mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned whereby the revision petition preferred on behalf of respondent has been accepted. There is no cavil with the proposition that an application preferred under Section 12(2), C.P.C. could have been summ arily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality such application should have not been dismiss ed summarily and without recording the evidence. It is worth mentioning that primarily it is the satisfaction of the Court concerned either to frame issues, record evidence or decide such application as may be deemed fit and proper after considering the merits of each case. No yardstick can be fixed for rejection of such applications. A similar proposition was discussed in case Ghulam Muhammad v. Ahmed Khan 1993 SCMR 662 wherein it was observed as follows:-- "It is correct that the determination of allegations of fraud and misrepresentation, usually involved investigation into the questions of fact but it is not in every case that the Court would be under obligations to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view "the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand.
5. 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 simultan eously to reduce unnecessary burden on the Courts below which are already overburdened."
Reliance is also placed on the case titled as Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR 236), relevant portion whereof is reproduced as under: "9 Obviously , an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence."
Further reliance is placed on the cases titled as Abdul Razzaq vs. Muhammad Islam & 3 others (1999 SCMR 1714 ) and Mst. Nasira Khatoon and another us. Mst. Aisha Bai and 12 others (2003 SCMR 1050 ).
The applicant has categorically raised objection that he was not privy to the contract/agreement and had not authorized his brother/counsel to enter into compromise on his behalf as such the decree was obtained through fraud. The controversy raised in the application could not be decided without framing of appropriate issues. and allowing an opportunity to the parties to lead their respective pro and contra eviden ce, whereas the learned Courts below at the utter disregard of the facts and law illegally/summarily dismissed the application without application of judicious mind, as such, orders of the learned Courts below are not sustainable in the eyes of law .
6. In view of above, this writ petition is allowed. Order dated 06.03.2017 of the learned Civil Judge, Lahore as well as the order dated 09.07.2019 of the learned Addl. District Judge, Lahore are hereby set aside and application under Section 12(2), CPC filed by the petitioner is deemed pending before the learned trial Court who shall decide the same after framing the necessary issues and recording the evidence of the parties strictly in accordance with law, on merits, expeditiously preferably within a period of three months from receipt of certified copy of this order .