LAL JAN KHA TTAK, J.---This petition is directed against the judgment dated 21.05.2012 of the learned Additional District Judge-VI, Peshawar , whereby the petitioner's revision petition against the order dated 05.01.2012 of the learned Civil Judge-VI, Peshawar has been dismissed.
2. Brief facts of the case are that 1 kanal plot bearing No.107/N-4 situated at Hayatabad Township, Peshawar (the plot) was allotted to the respondent No.1 (the respondent) on 01.04.1990 by the then Chief Minister from his discretionary quota, however , the allotment order later on was withdrawn on 25.04.1990 which the respondent impugned through a civil suit. It is worth to add that during pendency of the respondent's suit, the plot was allotted' to one Sahibzada Ashraf Noor by the PDA on 17.11.1990, who then was impleaded as defendant in the suit by the respondent. The suit was dismissed by the learned trial court vide judgment and decree dated 02.10.1999 whereagainst the respondent filed an appeal. Pending adjudication of the appeal, Sahibzada Ashraf Noor sold out the plot to Syed Muhammad Sibtain on 20.03.2001 from whom same was purchased by Mrs.Naila Anwar vide transfer deed dated 12.09.2003 and from her it came to Faheem Adam through transfer deed dated 21.10.2004.
From Faheem Adam the plot came to Mukhtiar Ahmad on 07.01.2005 and then to the petitioner on 07.03.2005.
3. On 14.05.2002, the learned appellate court accepted the appeal of the respondent and remanded the case to the learned trial court for its re-decision. The learned trial court then decreed the suit on 13.11.2004 whereafter execution petition was filed on 13.05.20 05 by the respondent. Aftermath the execution proceedings, petitioner came to know about the judgment and decree dated 23.11.2004 whereafter he filed application under section 12(2), C.P.C. for its setting aside, however , his application was dismissed on 05.01.2012 by the learned trial court against which he preferred a revision petition but the learned revisional court concurred with the learned trial court vide its judgment dated 21.05.2012, hence the instant petition.
4. Arguments heard and record gone through.
5. Perusal of the case record shows that origin of the case lies in allotment order dated 01.04.1990 according to which the plot was first allotted to the respondent by the Chief Minister from his discretionary quota. Ibid allotment order was later on withdrawn by the Chief Minister which aggrieved the respondent as a result he impugned the withdrawal order dated 25.04.1990 in a civil suit which was dismissed on 02.10.1999 but was decreed on 23.11.2004. It will not be out of place to mention here that during the time from institution of the suit till the decree, the plot saw its 06 owners all with consideration.
6. Petitioner is last allottee of the plot who got it from Mukhtiar Ahmad on 07.03.2005. The deal struck between him and his vendor , who was a duly recorded owner in the record of PDA, is for consideration which has not been impugned by anyone. Record also shows that no order was ever issued by the courts against PDA restraining it from further alienating the plot to anyone during pendency of the suit or appeal. In such a situation, the petitioner's plea that he has been prejudiced by the judgment and decree dated 23.11.2004 of the learned trial court holds water as it appears that he has purchased the plot as a bona fide purchaser for consideration. However , the questions for consideration are whether or not he knew about pendency of the respondent's suit qua the plot or whether his vendor had such knowledge? Ibid questions can only be resolved after recording some evidence which exercise the learned trial court was required to undertake but has not been done. Failure of the learned trial court to frame necessary issues and to record pro and contra evidence thereon to the ibid effect has; prejudiced the petitioner's lawful interest as only through evidence he could have proved whether at the time of purchase of the plot he was aware of the fact that the respondent has challenged the withdrawal order of the plot or not and whether he was a bona fide purchaser of the plot.
7. True that stricto sensu the respondent has not obtained the decree dated 23.11.2004 fraudulently as has been held by the learned revisional court but whether non-impleadment of Syed Muhammad Sibtain Shah and Naila Anwar as defendants in the suit to whom the plot had legally come prior to the decree passed in favour of the respondent cane be termed and equated with fraud and misrepresentation is a very material fact resolution of which surely would need some evidence because had they been arrayed as defendants in the case either by the respondent or on the application of PDA, the situation and consequences would have been different for the petitioner on which material fact of the case recording of evidence was must.
8. As neither vendor of the petitioner nor the vendor of his vendor were made party to the suit which fact had direct bearing on the petitioner's case, therefore, both the courts below have committed an illegality while deciding the petitioner's application under section 12(2), C.P.C. sans any evidence for which the impugned orders/judgments are not sustainable in the eyes of law. No doubt, in certain cases, instituted under section 12(2), C.P.C., framing of issues and recording pro and contra evidence thereon is not necessary but keeping in view the mentioned background and history of the instant case, it was must for the learned trial court to decide the Us after framing issues and lead evidence of the parties thereon.
9. For what has been discussed above, this petition is allowed, the impugned orders/judgments are set aside and the case is remanded to the learned trial court to decide the application under section 12(2), C.P.C. afresh after impleading all the vendors of the plot as defendants, frame necessary issues and record evidence thereon.
Further , as the case is too much old, therefore, the learned trial court shall decide it within a period of 06 months.