JUDGMENT GHULAM MAHMOOD QURESHI, J. - This Constitutional petition has been directed against the judgment dated 20.11.1 999 .Passed by the learned Addl. District Judge, Gujranwala, whereby the learned Court after setting aside the order dated 21.7.1999 accepted the application under Section 12(2), CPC filed by the respondents and directed the parties to appear before the learned Trial Court on 27.11.1999.
2. The facts in brief relevant for the disposal of this writ petition are that the petitioner filed a suit for declaration against Muhammad Hussain. Muhammad Hussain was owner of land measuring 129 kanals, 13 marlas situated in Mauza Pandoki Tehsil Wazirabad District Gujranwala. According to averments made in the plaint, it was alleged that Muhammad Hussain received Rupees Ten Lacs as consideration of the property in dispute and promised to hand over its possession but he hacked out from his promise which resulted in the institution of the suit. The suit was filed on 2.10.1995. Summons were issued for 4.10.1995 to Muhammad Hussain on which date he appeared before the Court and submitted consenting written statement. His statement was also recorded on the same date' and on the basis of the consenting written statement as well as the statement made by Muhammad Hussain before the Court, the learned Civil Judge decreed the suit of the petitioners/plaintiffs on 4.10.1995.
3. Muhammad Hussain defendant on coming to know about the decree, on 25.10.1995 filed an application under Section 12(2), CPC for setting aside the impugned decree on the basis of fraud and mis-representation. It was alleged in the application that respondents Nos. 1 and 2/petitioners have got consenting decree through fraud, it was further alleged that petitioner No. 2 got identity card of the applicant for getting loan from the agricultural bank and also persuaded him to go alongwith him to Wazirabad where he was taken in a chamber of Advocate and on the above- said pretext got his thumb impression on some blank paper, it was further alleged that neither he ever appeared before any Court nor filed any consenting written statement and never received any sale consideration amount and did not sell the suit property to the petitioners/respondents.
Petitioner No. 2 being son-in-law of- applicant Muhammad Hussain committed fraud to deprive him from his property.
4. The learned Trial Court on the divergent pleadings of the parties framed the following issues:-
(1) Whether the decree dated 4.10.1995 is based on fraud, fake and misrepresentation? OPA.
[Vol.XXI Shaukat Hayat V. Muhammad Malik C.C. 125 (Ghullam/am Mahmood Qureshi, J.)
(2) Relief.
5. The learned Trial Court after recording evidence of the parties dismissed the application vide order dated 21.7.1999. Feeling aggrieved by the above-said order, the respondents, legal heirs of the deceased Muhammad Hussain, filed 'a revision petition which was accepted by the learned Addl.
District Judge vide judgment dated 20.11.1999, the order dated 21.7.1999 was set aside and the application under Section 12(2), CPC was accepted. '
6. The petitioners have assailed the above-said judgment passed by the learned Addl. District Judge, Gujranwala in this Constitutional petition.
7. I have heard learned counsel for the parties and have also perused the record. According to admitted position on the record, the petitioners filed suit on 2.10.1995 on which date Muhammad Hussain, defendant in the suit was summoned through registered post for 4.10.1995 i.e. The date was fixed just after two days and on that date in response to summon issued by the Court said Muhammad Hussain appeared before the Court, it cannot be believed that he appeared in response of summon issued by the Court because in such a short time service could be effected through registered post. However, on the same day a consent written statement was filed on his behalf. He himself also voluntarily appeared before the Court and stated that the compromise has been effected between the parties and requested to record his statement which was recorded, by the Reader of the Court and endorsed by the Presiding Officer but just after 21 days of filing of consenting written statement and making statement before the Court, the said Muhammad Hussain filed an application under Section 12(2), CPC for setting aside the impugned decree on the basis of fraud and mis-representation, wherein it was alleged that petitioner No. 2/respondent got his identity card for getting loan from agricultural bank. He was also taken to Wazirabad in a chamber of Advocate, where he was made to put his thumb impression on some blank paper, it was further alleged that he never appeared in Court and never filed any consenting written statement. Petitioner No. 2 is admittedly son-in-law of the deceased Muhammad Hussain. Mst.
Sajida Bibi, who has been arrayed as respondent No'. 4 wife of petitioner No. 2, when appeared as A.W. 1 deposed against her on. Husband and stated that Khyzer Hayat came to her father in early morning and asked to accompany him for getting loan from the agricultural bank and for that he was -required to sign as a witness. He also got his identity card. She further deposed that her father never entered into any agreement of sale of his land with the petitioners and no amount was ever taken by him from them, the decree was outcome of fraud which came to the knowledge after 10/15 days whereafter the application was filed, In cross-examination also she specifically denied about filing of any consenting written statement by her father and denied that he ever engaged Mr. Abid Hussain, Advocate as counsel for that purpose. Abid Hussain, Advocate while appearing as R.W.2, deposed that he filed written statement Ex.R/2 in the Court which was thumb marked by Muhammad Hussain; statement of Muhammad Hussain was recorded by the Readpr of the Court, In cross-examination, this witness admitted that Muhammad Hussain was not known to him personally and it was on 1.10.1995 when he came for the first time in his chamber and second time on 4.10.1995 he came to his chamber. About the plaint this witness stated that he drafted the plaint on 1.10.1995 and filed the same on behalf of the petitioners but did not sign that plaint and R.W.1 signed that, it was further stated that he as well as Tasadaq Hussain used to sit in one chamber. He also stated that when 'the Reader of the Court recorded the statement, the learned Presiding Officer was present in retiring room. R.W.3 Shaukat Hayat, while appearing as his on. Witness deposed about the fact of filing the written statement by Abid Hussain, Advocate on behalf of Muhammad Hussain and further stated that after receiving Rs. 10,00,000/-. Muhammad Hussain entered into a compromise and made a statement before the Court, In cross-examination he stated that they had to receive Rs.2/3 lacs from Muhammad Hussain, deceased which were given to him by his brother and sister-in-law. He also stated that remaining sale consideration of Rs. 7,00,000/- was paid on. The second day after institution of the suit by them in his house. He also stated that when sale consideration was paid to Muhammad Hussain, Ghulam Qadir and Muhammad Abbas were also present. He also stated that Muhammad Hussain stated that he is not willing to part with the.Land for Rs. 10,00,000/- then they instituted the suit. The statement of this witness is full ol contradictions on one side he stated that Muhammad Hussain was not willing to sell the land for a consideration of Rs. 10,00,000/ [Vol.XXI * Shaukat Hayat V. Muhammad Malik C.C. 127 (Ghulam Mahmood Qureshi, J.) while on the other hand he stated that Rs. 7,00,000/- were paid to Muhammad Hussain in the next day of institution of the suit. He has also contradicted the statement made by Abid Hussain, Advocate as he stated that at the time when statement of Muhammad Hussain was recorded by Reader of the Court, the Presiding Officer was sitting in Court and not in chamber. Abid Hussain, Advocate has stqjed in cross-examination that the statement of Muhammad Hussain was recorded by the Reader and the learned Judge was sitting in his retiring r'oom. As far as the payment of consideration amount is concerned there was absolutely no evidence in this regard.
Admittedly no receipt was produced. Even the simple assertion of oral agreement and payment is not proved as the persons named by R.W.3 in whose presence the remaining consideration amount of Rs. 7,00,000/- was allegedly paid, were not produced. R.W.3 has contradicted even the everment made in para 2 of the plaint which was to the effecf:- 0,00.000^ ^ / SJ' m * * 9 ** As already noticed he stated in cross-examination that Rs.
7,0, 000/- were paid to Muhammad Hussain on the second day of institution of the suit. The learned Addl. District Judge was perfectly justified in holding that in fact the sale consideration was not paid by respondents Nos. 1 and 2 at the time of institution of the suit. I also endorsed this finding recorded by the learned Addl. District Judge and also the finding that "respondents Nos. 1 and 2 have to file a suit for specific performance against Muhammad Hussain, deceased because the sale was not completed at the time of institution of suit and they intentionally and wrongfully valued the suit for purposes of Court-fee as well as for the purposes of jurisdiction of the Court".
8. In view of what has been discussed above, the finding recorded by the learned Addl. District Judge suffers from no illegality or infirmity. This writ petition has no merit and the same is dismissed.