Raheel Kamran J. The petitioner moved an application under Section 12(2) CPC (the Code) for setting aside the judgment and decree dated 19.09.2011 passed by the learned Civil Judge, Vehari in favour of respondent No.3 and against respondent No.4, which was dismissed vide order dated 05.12.2012 and civil revision of the petitioner against the same was also dismissed by the learned Additional District Judge, Vehari vide judgment dated 16.04.2014, which have been impugned herein.
2. Learned counsel for the petitioner contends that the impugned judgment and decree has been obtained with fraud, miscarriage of justice and same is not sustainable in the eye of law; that his application under Section 12(2) CPC has been dismissed without framing of issues and recording evidence thereon, which is unsustainable in law and that the learned revisional court has acted illegally and without lawful authority while dismissing his revision petition without application of judicious mind.
3. Learned counsel for the respondent No.3 on the other hand has supported the impugned orders.
4. Arguments heard. Record perused.
5. Learned Additional District Judge dismissed revision of the petitioner, inter alia, with the following findings:- "7. Admittedly, the petitioners are the real sons of the respondent No.2. The application u/s 12(2) of CPC has been filed in the execution petition titled Nazir Ahmad Vs. Khan Muhammad. The suit had been filed on 20.11.2007 by the respondent No.1 against the respondent No.2 which was decreed.
The respondent No.1 filed execution petition in which the petitioner namely Muhammad Zubair, personally appeared before the executing court on 6.3.2012 and sought time for filing objection petition, with the contention that he is the owner of the disputed land vide mutation No.4455. He, in his objection petition dated 4.5.2012, has raised almost all the vital contentions of the instant petition which has been decided by the learned executing court vide detailed and well reasoned order dated 18.7.2012. The petitioner namely Muhammad Zubair has not made any movement against the said order on any higher forum and that order has, in this regard, attained finality.
Hence, principal of resjudicata is applicable in the instant case. It is pertinent to mention here that the judgment debtor has neither filed the objection petition nor preferred any appeal against the said judgment and decree dated 19.9.2011. The said judgment and decree, in this regard has also attained finality.
8. The petitioner has alleged that he has purchased the disputed land from Muhammad Sharif Shahid, vide mutation No.4455 dated 16.4.2012. While on the other hand, the petitioner No.1 has recorded his statement before the local commission in case titled Muhammad Sharif Shahid Vs. Nazir Ahmad on 26.06.2009, wherein he has stated that the said property has been purchased by his father from the respondent No.1 namely Nazir Ahmad and Muhammad Sharif Shahid has no concern, whatsoever, with the disputed property. In this way the conduct of the petitioner No.1 is self contradictory. There is also no ambiguity qua the identification of the disputed land.
9. The learned counsel for the appellant has contended that the petitioners are the necessary party. However, this contention is also devoid of force. The disputed judgment and decree has been passed on 19.9.2011. The petitioner No.1 himself has joined in the execution proceedings. His thumb impression is available on the order sheet dated 6.3.2012. He allegedly purchased the disputed land on 6.4.2012. The judgment and decree dated 19.9.2011 was very well in the knowledge of the said petitioners. In this way the petitioners were not the proper and necessary party.
Moreover, the learned executing court has already decided this issue vide order dated 18.7.2012.
The petitioner has not filed a revision/appeal against the said order and the same has attained finality."
6. The above findings of learned Additional District Judge are unexceptionable.
7. As regards plea of the petitioner that his application has been decided without framing issues and recording evidence, suffice it to say that such plea, in the facts and circumstances of the case, has no force. It has been held in various judgments of the apex Court to be not mandatory to frame issues and record evidence for the disposal of an application under Section 12(2) of the Code as the court had to regulate its proceedings keeping in view nature of the allegations made in the application and adopt such mode as was in consonance with justice in the facts and circumstances of the case. It was further held that framing of issues in every case to examine merits of such application would frustrate the object of Section 12(2) of the Code which is to avoid protracted and time consuming litigation and to save the genuine decree holders from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts. Reliance in this regard is placed on the cases of Ghulam Muhammad v. Ahmed Khan (1993 SCMR 662); Amiran Bibi and others v. Muhammad Ramzan and others (1999 SCMR 1334); Ms. Amina Bibi v. Nasrullah and others (2000 SCMR 296); Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050) and Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531).
8. Learned counsel for the petitioner has failed to manifestly show what fraud and misrepresentation has been committed by respondent No.3 in obtaining the impugned judgment and decree or that the same was passed by a court not competent in that regard, which are essential requirements of law to be established for the exercise of jurisdiction under Section 12(2)
CPC.
9. For the foregoing reasons, the petitioner has failed to make out a case of illegality or jurisdictional error in the decisions impugned in the titled writ petition warranting interference of this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly, this writ petition is dismissed being devoid of any merit.