This writ petition questions the judgment, dated 15-12-1997 of a learned Additional District Judge, Lahore, whereby he allowed the civil revision of respondent No. l against the order, dated 7-11-1995 of a learned Civil Judge, Lahore, thereby allowing the application filed by respondent No.1 under section 12(2), C.P.C. Seeking to set aside the judgment and decree, dated 4-3-1985 in a civil suit filed by the petitioner against the respondent No.2. .
2. The petitioner filed a suit against respondent No.2 for Specific Performance of an agreement, dated 31-8-1981 to sell the suit house for a consideration of Rs.1,50,000. The terms of the said agreement as narrated in the plaint and the present civil revision were that the respondent No-2 received a sum of Rs.80,000 from the petitioners; she promised to return the said amount within 8 months and in case she failed to return the said amount then property was to be transferred by her to the petitioner through a registered sale-deed. It was also urged by the petitioner that another amount of Rs.20,000 was also received by respondent No.2 on the same condition. As she failed to return the said amount the petitioner filed the suit for Specific Performance i.e. Requiring her to transfer the suit property to them and execute a sale-deed. The lady appeared in Court in response to the summons and filed a written statement alleging that the petitioners are money lenders. They had advanced the said amount of Rs.1,00,000 to her daughter Mst. Balqis Begum but forced her to execute the two agreements. It appears that after filing the written statement respondent No.2 absented herself and the trial Court proceeded to pass an ex parte decree in favour of petitioners and against respondent No.2 on 4-3-1985. It is further averred that the decree was put into execution and a sale-deed was executed and registered by the Court in favour of the petitioners on 2-7-1985. It was on 5-4-1986 that respondent No.1 filed an application under section 12(2), C.P.C. Averring that respondent No.2 had entered into a registered agreement of sale in favour of one Masood Sheikh, on 27-12-1981. The said agreement contained a term that the property will be conveyed to said Masood Sheikh or his nominee. The sale-deed was ultimately executed on 10-12-1983 in favour of Iqbal Begum by respondent No.2 as a nominee of said Masood Sheikh. This Iqbal Begum sold the property to respondent No.1 vide registered sale-deed dated 10- 5-1985. Respondent No.1 averred in the application that the decree is a result of collusion, fraud and misrepresentation. Respondent No.1 claimed to be in possession of the suit property under the sale.
This application was resisted by the petitioner. The learned trial Court framed issues and after recording the evidence dismissed the application vide order, -dated 7-11-1995. The civil revision filed by respondent No.1, however, was allowed by a learned Additional District Judge, Lahore who accepted the application and set aside the decree, dated 4-3-1985 and sent back the case to the learned trial Court with the direction that all the persons involved be impleaded and thereafter the suit be decided on merits.
3. Learned counsel for the petitioners argues that the impugned judgment is without lawful authority inasmuch as the conditions attracting section 12(2), C.P.C. Were non-existent.
District Judge to set aside the decree. It is the case of respondent No. l that respondent No.2 had entered into registered agreement with Masood Sheikh agreeing to sell him suit house on 27-12- 1981. The suit was filed on 16-12-1982 and respondent No.2 had certainly appeared and put in her written statement after the said date. She had not disclosed the said fact in her written statement. I asked the learned counsel for the petitioner whether it was not active concealment of material facts by the respondent No.2. The learned counsel answered in affirmative but argued that it is only fraud played by decree-holder which can be made the basis for setting aside of a decree under section 12(2), C.P.C. I am afraid this contention of the learned counsel is not sound. Section 12(2), C.P.C. Speaks of challenge to a decree on plea of misrepresentation. The reading of the said provision of law in the manner suggested by the learned counsel for the petitioner is not possible.
The said Masood Sheikh was holding a registered agreement. The petitioner do not even claim that they were delivered possession under unregistered agreement in their favour. This being so under the provision of section 50 of the Registration Act, 1908, the registered agreement in favour of Masood Sheikh was to take precedence over unregistered agreement in favour of the petitioner.
5. The writ petitioner had not placed copies of the agreement in their favour on record. On my insistence the learned counsel read out the contents of the said agreement from his brief. The agreement prima facie appeared to be inequitable and violative of the time honoured principle that their can be no clog on the equity of redemption. The agreement per se speaks out that some money was loaned to respondent No.2 and on her failure to pay back the amount the transaction was to be converted into a transaction of sale.
6. This is a writ petition and the case of the petitioner prima facie does not call for any interference by this Court in exercise of Constitutional jurisdiction.
7. The learned Additional District Judge has passed a lawful order which promotes the ends of justice. He has reopened the entire matter and all concerned parties would be able to put forward their case and to lead evidence in support of the same.
8. I may clarify here that any observations made by me in this judgment are of a tentative nature and will not be binding on the learned trial Court who will be free to decide the suit in accordance with law on the basis of evidence produced before him by the parties as instructed by the learned Additional District Judge in the impugned order.
9. The write petition is accordingly dismissed without any order as to costs.