This is a revision petition against the order, dated 9-4-1996 passed by the learned District Judge, Sargodha by which he had dismissed the petition under section 12(2), C.P.C. Read with section 151 and Order IX, rule 13, of C.P.C. And had declined to set aside the decree, dated 5-5-1986 passed by the then learned District Judge, Sargodha, in a suit for specific performance of contract.
2. The brief facts of the case are that Sabir Hussain respondent No.1 had filed a suit for specific performance against Mst. Ghulam Bibi daughter of Subedar Raj Wali through her brother Raja Ghulam Hussain who was her General Attorney. The suit related to 1/3rd share of 162 Kanals and 5 Marlas of land (i.e. 54 Kanals) situated in Chak No.92/Shamali, District Sargodha. Ghualm Hussain the aforesaid General Attorney of Mst. Ghualm Bibi defendant fled a consenting written statement in the learned Civil Court, Sargodha while defendant No.2 i.e. Province of the Punjab through the Collector, Sargodha controverted the plea of the plaintiff inter alia on the ground that the land in question had been originally allotted to Muhammad Ayub Khan and then his son Raja Muhammad Yousaf Khan who had submitted an application for conferment of proprietary rights and who was allowed to deposit the price (for acquiring the property rights) at the rate of Rs.44 per acre fn four equal instalments, vide order of the Collector, dated 27-3-1945 without depositing the said amount he could not be granted proprietary rights of the said land. It was also averred defendant No.2 that defendnat No.1 had obtained only 54 Kanals of land from the original allottee through Mutation No.306 but she also did not possess the proprietary rights. Defendant No. l submitted an application on 5-12-1983 for conferment of proprietary rights and proceedings on the said application were underway when the plaintiff filed the suit. Defendant No.2 also took the plea that it was not bound by the terms of an oral sale (between the plaintiff and defendant No. l) and that under the terms and conditions of grant, defendant No. l was not competent to alienate the land in dispute without prior permission and before the execution of the Transfer Deed. Defendant No.2 also raised a number of other objections as well in the written statement. The learned Senior Civil Judge, Sargodha framed the issues on 23-7-1984 and the case was adjourned on a few dates of hearing for the plaintiff's evidence. On 3-5-1986, the learned Presiding Officer in whose Court the case was pending was on leave. On the said date i.e. On 3-5-1984, the learned District Judge, Sargodha summoned the file and passed an order on the file of the civil suit, withdrawing the suit from the Court of the learned Senior Civil Judge to his own Court (on the original site) and it was directed that notice to defendant No.2 be issued for next date. It seems that on 4-5-1986, Sabir Hussain, the plaintiff filed a formal application as well for the transfer of the suit and on which the learned District Judge, Sargodha again passed an order on 4-5-1986, withdrawing the suit from the Court of the learned Senior Civil Judge and entrusting it to his own Court. The said order, dated 4- 5-1986 was very surprising because on 3-5-1986 the learned District Judge, Sargodha had already transferred the civil suit to his own Court and there was no need to pass a fresh order on 4-5-1986, after obtaining a. Transfer application from the plaintiff. The story does not end there. On 5-5-1986 the learned District Judge, Sargodha observed that defendant No.2 is a formal party and as such he proceeded to delete its name as one of the defendants. It has already been mentioned above that in, its written statement defendant No.2 i.e. Province of the Punjab had raised very serious objections (legal as well as on facts) and on the basis of which the learned trial Court had also framed the issues. After the deletion of the name of the defendant No.2 as a party to the suit, there was no obstacle left in decreeing the suit and so the then learned District Judge, Sargodha vide his order, dated 5-5-1986 proceeded to decree the suit for specific performance of the agreement in favour of the plaintiff. He also directed that if the balance amount of Rs.19,000 is not paid within a week, the sale-deed shall be presented to the Registrar for registration through the officials of the Court. It appears that on 10-9-1994, Mst. Ghualm Bibi the defendant filed the application, dated 28- 8-1994 under section 12(2), C.P.C. Read with section 151 and Order IX, Rule 13 of the C.P.C. For setting aside the decree, dated E 5-5-1986 passed by the then learned District Judge, Sargodha in the suit for specific performance of agreement. Mst. Ghulam Bibi inter alia took the plea that the decree aforesaid was the result of collusion between Ghulam Hussain, her General Attorney and the plaintiff and that she had never received any notice or any other intimation from the Court and that the proceedings of the suit had never come to her knowledge and that the entire proceedings were the result of collusion and fraud and that she had never received a single penny towards the payment of the sale price of the suit-land nor had executed any agreement to sell in favour of the plaintiff. She further averred that as it was colony land, It could not be transferred without the permission of the District Collector (as per section 19 of Colonization of Government Lands Act, 1912.
It was prayed by her that the judgment and decree, dated 5-5-1986 (being the result of fraud, collusion and misrepresentation) be set aside. The plaintiff i.e. Sabir Hussain filed a written reply to the said petition. He also raised a number of preliminary objections in the petition including the one relating to the limitation. After hearing the arguments, the learned District Judge, Sargodha vide his order, dated 9-4-1996 proceeded to dismiss the petition. Hence this revision petition.
3. Arguments have been heard and record perused.
4. It has already been mentioned above as to how the then District Judge, Sargodha had withdrawn the suit from the Court of the Senior Civil Judge, Sargodha to his own file and then had hurried to delete the name of defendant No.2 from the plaint and had then rushed to pass a decree in favour of the plaintiff (on the basis of the consenting written statement filed by Ghulam Hussain, the General Attorney of Ghulam Bibi). Anyhow, as it all happened in the year 1986, no useful purpose, shall be served at this stage to question the action of the then learned District Judge, Sargodha in transferring the civil suit to his own file. Even otherwise, at present we are dealing with the impugned order, dated 9-4-1996 passed by the then learned District Judge, Sargodha whereby the application under section 12(2), C.P.C. Had been dismissed.
5. I have carefully considered the arguments advanced from both sides.
6. Section 12(2) of the C.P.C. Provides that where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
7. It is not mandatory that in all applications under sections 12(2), C.P.C. An enquiry be necessarily held. A frivolous application can be dismissed even summarily. But in a case of this nature (like the present one) holding an enquiry is a must. In her application, Mst. Ghulam Bibi had clearly alleged fraud and misrepresentation while challenging the decree in question. However, the learned District Judge, Sargodha did not frame issues and decided the application without recording the evidence of the parties and which in my view has resulted is failure of justice. Even the question of limitation could be decided after recording evidence of the parties because the petitioner had claimed that the decree in question had never come to her knowledge previously and that, she had filed the application as soon as it came to her notice and so it was a mixed question of law and facts.
8. In view of what has been stated above, the Revision petition is accepted, the impugned order, dated 9-4-1996 passed by the then learned District Judge, Sargodha is set aside and the petition is remanded to the learned District Judge. Sargodha with the direction to decide the petition under section 12(2), C.P.C. Afresh, after framing issues arising out of the pleadings of the parties and after recording evidence.
9. Under the circumstances, the parties are left to bear their own costs.
10. The parties are directed to put in appearance in the Court of the learned District Judge, Sargodha on 21-10-2002 for further proceedings.
H.B.T./G-217/L