' By judgment dated 22-10-1991 an application under section 12(2), C.P.C., filed by the petitioner, was dismissed by the learned Additional District Judge, Gujrat which has been challenged through this revision petition. It arises in the background briefly stated below:--
2. Muhammad. Hussain, respondent No,2 (brother of the petitioner) had filed a suit for declaration against Abdullah, predecessor-in-interest of respondent No,1 seeking declaration that he was owner in possession of the suit shop. The said suit was contested by respondent No,1 who claimed that the shop was owned by his late father and he was owner thereof. Issues arising out of the pleadings of the parties were framed, whereafter, some evidence was also recorded by the learned trial Court when on 12-6-1989 Muhammad Hussain offered that if Ibrahim, D.W.1 takes oath on Holy Qur'an and deposes that he had sold suit shop to Abdullah, his suit may be dismissed. This offer was accepted and Ibrahim, D.W.1, took oath on Holy Qur'an, in view whereof, the suit of Muhammad Hussain was dismissed by the learned trial Court on 12-6-1989. Muhammad Hussain then filed an appeal there against which was dismissed by the learned Additional District Judge, Gujrat on 31-1- 1990. He filed Civil Revision No,1192-D of 1990 before this Court which was dismissed as withdrawn on 3-6-1990. Muhammad Hussain apparently seems to have not agitated the matter any further.
Barkat Ali, petitioner, the real brother of Muhammad Hussain, then filed an application under section 12(2), C.P.C. Before the learned trial Court on 4-11-1990 atch application was dismissed by the learned trial Judge on 7-2-1991 taking the view that the final judgment and decree was passed in the case by the learned Additional District Judge, Gujrat, the application was not maintainable before him. The petitioner then on 16-2-1991, filed an application under section 12(2), C.P.C. In the Court of learned Additional District Judge, Gujrat, that on 4-5-1976 Muhammad Hussain had sold the suit shop for Rs,6,000 to him and A the decree had been passed without impleading him as party in the litigation between Mr. Muhammad Hussain and Nadir Khan, respondent No,l. The said application was dismissed by the learned Additional District Judge on 22-10-1991 through the judgment impugned herein.
3. It is contended by the learned counsel for the petitioner that Mr. Muhammad Hussain, respondent No,2, had sold the suit shop in favour of the petitioner but he was not impleaded as party in the litigation and has been defrauded by the respondents. It is contended that the application of the petitioner has been dismissed by the learned District Judge on untenable grounds and that the allegation of fraud pleaded by the petitioner required issues to be framed and the application could not be dismissed without recording of evidence in the matter. Reliance is placed on Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 492 and Muhammad Hussain v. Mst. Razia Bibi and others 1999 M LD 3030.
4. Learned counsel for respondent No,1 on the other hand contended that the application was filed by the petitioner at the behest and instance of respondent No,2, his real brother, after he had lost his case up to this Court and that it is an abuse of the process of the Court which application has rightly been dismissed by the learned Additional District Judge. Relies on Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCM R 296 and Nazir Ahmed v. Muhammad Sharif and others 2001 SCM R 46 that the framing of issues in all applications under section 12(2), C.P.C.
Was not necessary.
5. The brief resume of the factual background, mentioned above, in which the application under section 12(2), C.P.C. Was filed by the petitioner would show beyond any doubt that Barkat Ali, petitioner and Muhammad Hussain respondent No,2 are real brothers. They reside in the same village. It is very hard to believe that the petitioner would not have come to know of the litigation which had been started by Mr: Muhammad Hussain, his brother against respondent No,1 way back in the y 1988. It is not necessary to discover the reason as to how Mr. Muhammad Hussain had agreed for the decision of the suit on the statement of Ibrahim. The fact of the matter is that Ibrahim had stated that he was owner of the suit shop which had been sold by him to Abdullah, predecessor-ininterest of respondent No,1. The suit of Muhammad Hussain was accordingly dismissed. Had it been a collusive affair, Mr. Muhammad Hussain would not have challenged that judgment and order of the trial Court but he fought up to this Court when his revision petition was dismissed. It is thus quite evident from the circumstances that the petitioner who had filed application under section 12(2), C.P.C. On 4-11-1990 i.e, after the dismissal of the revision petition of Mr. Muhammad Hussain oh 3-61990, this action was a design, aimed at to deprive respondent No,1 of the outcome of litigation which had ended in his favour. It may be noted that the plea of the petitioner that he had been sold the suit shop by Mr7 Muhammad Hussain on 4-5-1976 was based only on an alleged agreement to sell dated 4-5-1976, whereas, in his application he had claimed the complete sale in his favour on payment of the entire sale consideration. In any case, no rights would have accrued in favour of the petitioner unless there had been a duly registered sale-deed in accordance with law in his favour. There is another aspect that Mr. Muhammad Hussain, respondent No,2, had failed to establish his title to the suit shop, his plea of ownership suffered from self contradiction as he had pleaded adverse possession also. If any agreement had been executed by him in favour of the petitioner for the, sale of the same, the remedy for the petitioner would have been against Mr. Muhammad Hussain for the recovery of the price alleged to have been paid by him.
6. Insofar as the grievance of the petitioner that issue had necessarily to be framed and the evidence to be 'recorded by the Court, is concerned, suffice it to observe that in the case of Nazir Ahmed (supra), it was observed that "But it is not in every case that Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit. The matter is left to the satisfaction of the Court which has to regulate its, proceedings and keeping in view the nature of the allegations in the application the Court may in its discretion adopt any mode for its disposal. Whereas in the case in hand, as indicated hereinabove, the, petitioner did not request the Court for recording of evidence and framing of issues. He even did not mention the fact that' his relations with his brother were strained. The litigation between his brother and other respondents ended in compromise". After examining the contents of the application and in the light of earlier precedents, it was held that formulation of issues and recording of evidence was not required. In Mrs Arnim Bibi's case (supra), as well contents of the application were taken into consideration by their lordships and it was held that the same could be dismissed without framing issues and recording evidence. In the present case, as well, as already observed above, application did not disclose a triable controversy for which issues had necessarily to be framed. The precedents cited by the learned counsel for the petitioner had their own peculiar facts and circumstances and not attracted to the facts and circumstances of the present case. The application under section 12(2), C.P.C., filed by the petitioner, in the circumstances was rightly dismissed by the learned Additional District Judge.
' In view of the above, this petition is dismissed, There will be, however, no order as to costs.
Revision .