SHAHID BILAL HASSAN, J.---Succinctly, the petitioner/plaintiff instituted a suit for specific performance of agreement to sell dated 21.09.2013 with permanent injunction against the respondents/defendants. On 13.11.2014, the suit of the petitioner/plaintiff was dismissed as withdrawn on the basis of statement recorded by the petitioner.
Later on, an the petitioner filed application under section 12(2) along with an application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, 1908 seeking setting aside of withdrawal order dated 13.11.2014 and restoration of the suit for deciding the same on merits. The respondents contested the said applications. The learned trial Court vide impugned order dated 06.12.2017 dismissed the said application under section 12(2), C.P.C. The petitioner being aggrieved preferred an appeal but the same was also dismissed on 19.05.2018; hence, the instant revision petition.
2. Heard.
3. First of all it is observed that the order dated 06.12.2017, passed by the learned trial Court, dismissing the application under section 12(2), C.P.C. was revisable but an appeal was preferred by the present petitioner. The learned appellate Court was vested with jurisdiction to convert the appeal into revision petition but this fact has escaped the attention of the learned appellate Court and without 'adverting to the said legal point, the learned appellate Court decided the appeal; therefore, the said appeal is treated as revision petition and the instant revision petition is converted into constitutional petition under Article 199, Constitution of Islamic Republic of Pakistan, 1973. Office shall number it in the relevant register as Constitutional Petition.
4. Now, I advert to the merits of the case, perusal of the statement recorded on 13.11.2014 by the present petitioner being plaintiff divulges that certain compromise was effected inter se the parties and in pursuance of the same, the petitioner withdrew the suit. However, allegedly, later on, the respondents stepped back of the said alleged compromise which constrained the petitioner to file application under section 12(2), Code of Civil Procedure, 1908 with specific allegations of fraud. In support of his stance, the petitioner appended affidavits of the witnesses namely Maher Ghulam Hussain Patwari Halqa, Ajmal Khan son of Inayat Hussain and Aslam Khan son of Shahbaz, in order to show that before withdrawal of suit the parties entered into compromise with regards to the disputed property and Maher Ghulam Hussain Patwari settled the dispute inter se the parties in presence of the witnesses, named above. The respondents demanded withdrawal of suit till 27.11.2014 and agreed to abide by the agreement to sell dated 21.09.2013. However, when the petitioner withdrew his suit as per compromise, the respondents stepped back of the said compromise. Such factual controversy cannot be decided summarily without framing issues and recording evidence, especially when the application filed by the petitioner for setting aside the order dated 13.11.2014 has been adorned with affidavits of the witnesses. It is the requirement of law that each and every party should be provided with open field to prove his stance by leading evidence, obviously, by adhering to the procedural law i.e. Qanun-e-Shahadat, 1984 and Code- of Civil Procedure, 1908, in civil nature cases, because it is desired by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 that for determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. Besides, in this case, the doctrine of promissory estoppel also plays a significant role, as after alleged out of Court settlement, the parties cannot go aside and if anything such happened in between the parties and the respondents have stepped back, the petitioner can only prove the same by leading evidence. The doctrine of promissory estoppel was discussed in the judgment reported as Pakistan through Ministry of Finance Economics Affairs and another v. Fecto Belarus Tractors Limited (PLD 2002 Supreme Court 208), as under:- '23. It will be necessary to touch the true concept of the realm of doctrine of promissory estoppel.
Before proceeding further this doctrine has been variously called 'promissory estoppel' 'requisite estoppel', 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reasons why it should be given only a limited application by way of defence. There is no reasons in logic or principle why promissory estoppel should also not be available as a cause of action.'
The said doctrine was further reiterated by the Apex Court of the country in judgment reported as Azra Riffat Rana v. Secretary, Ministry of Housing and Works, Islamabad and others (PLD 2008 Supreme Court 476).
5. In this view of the matter, when the petitioner is knocked out of the arena on the basis of technicality, how will he be able to establish that some promise was made by the respondents in presence of the witnesses knowingly and showed their intentions that they would act upon the same if the petitioner withdrew the suit and when he performed his part of such promise, the respondents took somersault, in this way they (respondents) allegedly defrauded the petitioner by making him believe that they would act upon their part of promise. In such scenario, the learned Courts below while passing the impugned order and judgment have failed to exercise vested jurisdiction as per mandate of law, keeping in view the peculiar facts and circumstances of the case in hand, the impugned order and judgment are not upto the dexterity.
6. The crux of the above discussion is that the constitutional petition in hand succeeds, which is allowed accordingly and the case is remanded to the learned trial Court with a direction to decide the application under section 12(2) of the Code of Civil Procedure, 1908 after framing issues and recording evidence afresh on merits, which shall be deemed to be pending before it The adversaries are directed to appear before the learned 'trial Court on 10.03.2022.