C. M. No.1 of 2019 SHAHID BILAL HASSAN, J. None has entered appearance on behalf of the applicant; therefore, the application in hand stands dismissed for non-prosecution.
Main Petition Succinctly, the petitioner instituted a suit for possession on the basis of specific performance of agreement to sell against the predecessor in interest of the respondents Nos.1 to '7 and 10 others.
The predecessor in interest of the respondents Nos.1 to 7 entered appearance in the learned trial Court and subsequently filed his written statement on 15.03.2011. On 24.12.2011, the petitioner withdrew the suit due to some formal defects with permission to file afresh, which was dismissed as withdrawn subject to cost of Rs.500/- with permission to file afresh. The petitioner filed fresh suit for specific performance with possession against the predecessor in interest of the respondents Nos.1 to 7 and 2 others. However, during pendency of the suit, with the help of respectables of the locality the dispute inter se the parties was settled in the term that the agreement to sell was cancelled/withdrawn and predecessor in interest of the respondents Nos.1 to 7 issued cheque bearing No.10348398 dated 28.01.2012 valuing Rs.3,700,000/- drawn on Soneri Bank Branch Chiniot Bazar, Faisalabad and accordingly the petitioner handed over the original agreement to one Dr. Irshad Ul Haq, brother in law of the predecessor in interest of the respondents Nos.1 to 7 and it was further settled that after withdrawal of the suit, the petitioner would be entitled to get encashed the cheque ibid. In pursuance of agreement/compromise dated 12.01.2012, the present petitioner along with his counsel recorded their statements before the learned trial Court and withdrew the suit on 16.01.2012. However, when the petitioner presented the cheque for its encashment, the same was dishonoured with remarks "payment stopped by the drawer". The petitioner contacted the predecessor in interest of the respondents Nos.1 to 7 and Dr. Muhammad Irshad ul Haq who promised and assured that they will pay the amount within a period one and half year but despite that the amount was not paid, so the petitioner got lodged FIR No.955 of 2013 under section 489-F, P.P.C. at Police Station Peoples Colony, Faisalabad and also filed an application under section 12(2) read with section 151, Code of Civil Procedure, 1908. The learned trial Court accepted the said application by exercising inherent powers under section 151, C.P.C. and set aside the order dated 16.01.2012 and restored the suit instituted by the present petitioner. The respondents Nos. 1 to 7 being dissatisfied filed revision petition, which was accepted vide impugned judgment dated 15.02.2018 and order dated 03.02.2015 was set aside; hence, the instant constitutional petition.
2. Heard.
3. Order dated 16.01.2012 has much relevance for disposal of the instant constitutional petition, which reads:- Present; Plaintiff along with his counsel Plaintiff Abdul Ghaffar and his counsel want to record their statement. Let it be recorded:-- Statement of Abdul Ghaffar, plaintiff and his counsel Mehmood ul Hassan, Advocate Stated that they have effected compromise with the defendant No.3 who has handed over cheque of Rs.37,00,000/- and due to compromise they do not want to press the suit in hand and have no objection on dismissal of the suit as withdrawn.
RO&AC: 16.01.2022 (Ijaz Ahmad Bosal)
Civil Judge 1st Class Faisalabad ORDER: In the light of statement of plaintiff and his counsel suit in hand is hereby dismissed as withdrawn.
File be consigned to the record room.'
The above said order fully supports the stance of the petitioner that the suit was withdrawn due to an out of court settlement inter se the parties. The said facts are also evident from the copy of FIR, got lodged by the present petitioner, after bounce of the cheque, given to him in lieu of Rs.37,00,000/-. In such scenario, the learned trial Court has rightly exercised inherent jurisdiction under section 151, Code of Civil Procedure, 1908 because valuable rights of the petitioner are involved and he cannot be knocked out of the arena of litigation mere on the basis of technicalities, rather the Courts are to protect the valuable rights of the parties, that is why the inherent powers under section 151, Code of Civil Procedure, 1908 have been conferred upon the Courts. As against this, the learned revisional Court, without keeping in view the peculiar facts and circumstances of the case in hand has roamed in oblivion, because an application under section 12(2), C.P.C. can be converted into application under section 151, C.P.C. in order to administer safer justice to the litigant public, whose interest are being infringed on the basis of order obtained by defrauding him/her. Reliance is placed on Wazir Khan and 8 others v. Sardar Ali and 25 others (2001 SCMR 750), wherein the Apex Court of the country has held that:-
6. As far as application of section 151, C.P.C. to the present case is concerned, the same has been correctly applied as this section empowers the Court to make such orders as may be necessary for the ends of justice. This section begins with non obstante clause that "nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court" which empowers the Court to make any order which may be necessary in the ends of justice or to prevent the abuse of the process of the Court notwithstanding the codal procedure.'
4. In view of the above, the constitutional petition in hand is allowed, impugned judgment dated 15.02.2018 passed by the learned Addl. District Judge is set aside and that of the learned trial Court dated 03.02.2015 is restored. No order as to the costs.