The instant petition is directed against the order dated 23-9-2000 of the learned Additional District Judge, Peshawar, whereby he dismissed the petition tiled by the petitioners under section 12(2), C.P.C.
2. The learned counsel appearing on behalf of the petitioners contended that when the service of the summons was denied by the petitioners in that case the learned Additional District Judge could not have dismissed the petition filed by the petitioners under section 12(2) of the C.P.C.
Seeking to question the validity of the judgment and decree dated 4-12-1993 passed by him, as it raised a series of questions of fact which could not have been decided without recording evidence.
Similarly he next contended that the learned Additional District Judge could not have dismissed the aforesaid petition on the ground of limitation unless some evidence was brought on the record to show that the petitioners knew about the ex parte decree and that despite knowledge they filed it after the expiration of the period provided under Article 181 of the Limitation Act. The learned counsel by placing reliance on the case of Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCM R 2003) contended that where a case involves a pure question of law there oral address or written representation would be sufficient but where the matter needed either through documentary or oral evidence of witnesses, there the parties should be allowed proper opportunity to adduce evidence to substantiate their contentions. The learned counsel by referring to the case of Abdur Razaq v. Muhammad Aslam and 3 others (1999 SCM R 1714) contended that where the plea raised involved a factual controversy, the Court seized of such application was to decide it after framing the necessary issues and allowing opportunity to the parties to lead evidence in support thereof. The learned counsel by referring to the case of Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others (1994 SCM R 782) contended that where a decree was obtained by fraud the question of limitation for setting aside the same would not arise. The learned counsel by referring to the case of Choksi Bhidarbhai Mathurbhai v. Purshottamdas Bhogilal Shah (AIR 1962 Gujarat 10) contended that fraud vitiates the most solemn transaction and if a party by suppressing the summons in order to keep his counter part in ignorance and thereby induces a Court to pass an ex parte decree it would amount to fraud, therefore, such decree is liable to be set aside under section 12(2), C.P.C.
3. The learned counsel appearing on behalf of the respondents contented that the petitioners knew all along about the proceedings culminating in the decree sought to be set aside through an application under section 12(2), C.P.C., therefore, the learned Additional District Judge committed no illegality or jurisdictional error by dismissing it on the question of limitation without giving the parties an opportunity to produce evidence in this behalf. The learned counsel by referring to the judgment of Mrs. Amina Bibi, General Attorney v. Nasrullah and others (2000 SCM R 296), contended that while dealing with the allegations under section 12(2), C.P.C. It was not incumbent upon a Court to frame issues, record evidence and follow the procedure prescribed for decision of suit. The learned counsel by referring to the case of Ghulam Muhammad v. Muhammad Ahmad Khan and 6 others (1993 SCM R 662), contented that the very intent of the Legislature for introducing this provisions of law was to shorten the cumbersome procedure of questioning a decree obtained through fraud etc. By a civil suit, therefore, the order passed by the learned Court below being in consonance with the spirit of law merits no interference. The learned counsel by concluding his arguments contented that where the petitioners did not express their desire for adducing evidence they cannot later on turn round in the revisional Court to ask therefore, as they would be estopped by their own conduct to do so.
4. I have gone through the record and carefully considered the submissions of the learned counsel for the parties.
5. There is absolutely nothing on the record to show that the petitioners were served in accordance with the requirements of law or that they knew about the proceedings culminating in the impugned decree. Even if there was any such material on the record to show that they were served or that they knew about the proceeding all along the controversy agitated by the petitioners being one of fact could not have been resolved without recording evidence. It was held in the case of Muhammad Nawaz Khan v. Muhammad Khan and 2 others (supra) that where a case involved a pure question of law oral address or written representation would be sufficient but where the matter needed some factual inquiry either through documentary or oral evidence it could not have been resolved without allowing the parties a proper opportunity to adduce evidence in this behalf.
The assertion that the petitioners were never served and that they never knew about the proceedings before the date which they mentioned in the application under section 12(2) of the C.P.C., it was a matter which could not have been resolved without recording evidence. The learned counsel appearing on behalf of the respondents could not point out anything on the record showing that the petitioners were either served or that they knew about the proceedings culminating in the impugned decree.
6. There is no cavil with the argument addressed by the learned counsel for the respondents on the strength of judgments rendered in the cases of Mrs. Amina Bibi v. Nasrullah and others and that of Ghulam Muhammad v. Muhammad and 6 others (supra) that it is not incumbent upon a Court seized of an application under section 12(2), C.P.C. To frame issues, record evidence and follow the procedure prescribed for decision of suits in all circumstances, moreso, when the very intent of the Legislature for introducing this provisions of law was to curtail the agonies and hardships of the litigants and to make the procedure of challenging a decree obtained through fraud etc., less cumbersome but it by no means dispensed with the need of recording evidence where necessary.
The expression in all circumstances used by the Hon'ble Judges in the aforesaid judgment by necessary implication and intendment gives leave and latitude for recording evidence where necessary.
7. The argument that where a party did not express desire for recording evidence during the pendency of the proceeding it would be estopped by its own conduct to ask for the same when the matter is taken to the, higher' forum, may be correct but as is apparent from the tenor of the impugned order the learned Judge without waiting for the stage of recording evidence proceeded to dismiss the petition as he did not seem to be interested in doing justice between the parties but in mere disposal of the lis pending before him,
8. As the allegations made by the petitioners in their application under section 12(2) of the C.P.C.
Could not have been disposed of summarily without recording evidence, it would be clearly a case of failure of exercise of jurisdiction vested.
9. For the reasons discussed above, this petition is allowed, the impugned order is set aside and the case is sent back to the learned District Judge for decision afresh in accordance with law after giving the petitioners an opportunity to produce evidence. As it is an old case, let it be disposed of as expeditiously as possible.