2025 PLP 1237 (YLR)

Jawad Hassan, J.

The Petitioner, through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") has impugned the orders dated 29.03.2019 and 19.09.2018, passed by learned Courts below; whereby the Respondents' Application under Section 12(2) C.P.C. was allowed.

2. Brief facts of the case are that the Petitioner/decree holder filed a suit for declaration with permanent and mandatory injunction, which was decreed in his favour vide ex-parte judgment and decree dated 01.03.2016. Whereupon the Respondents Nos. 1 to 8 filed an Application under Section 12(2), C.P.C. for setting aside the aforesaid ex-parte judgment and decree on the ground that the same was obtained through fraud and misrepresentation. The learned trial Court accepted this Application vide order dated 19.09.2018 by setting aside the aforesaid judgment and decree. Feeling aggrieved thereof, the Petitioner filed a civil revision, which was also dismissed by the learned Additional District Judge vide impugned order dated 29.03.2019. Hence, this Petition.

3. Learned counsel for the Petitioner argued that the learned Courts below committed a grave error in law by accepting the Respondents' Application under Section 12(2) C.P.C. without adhering to the prescribed legal procedure. He highlighted that the impugned orders were passed without framing issues or recording evidence of the Parties, which was essential for the just adjudication of the matter. He further submitted that the Respondents had raised significant legal and factual questions in their Application, which could not have been resolved without conducting a proper analysis. He added that the Respondents raised certain legal as well as factual questions in the Application under Section 12(2) C.P.C., which could not be decided and the decree in favour of the Petitioner could not be set aside summarily. In conclusion, he prayed that the impugned orders be set aside, and the Petitioner's rights under the decree be upheld in accordance with the law.

4. In response, learned counsel for the Respondents vehemently objected to the maintainability of this Petition and defended the impugned orders. He argued that the suit property comprises of more than 8,000 kanals of undivided land, in which Respondents Nos. 1 to 8 are co-sharers as "Jade" owners. He further contended that the Petitioner, in collusion with the Defendants, managed to procure the impugned ex-parte judgment and decree within just one month of the institution of the suit, which casts serious doubt on the legitimacy of the proceedings. In light of these facts, the learned Courts below have rightly allowed the Respondents' Application under Section 12(2) C.P.C., thereby setting aside the ex-parte judgment and decree.

5. Heard. Record perused.

6. The basic defect in this case is that the Petitioner filed the suit by impleading only Respondents Nos. 9 to 11 (State Functionaries) as "Defendants," while excluding Respondents Nos. 1 to 8, who are allegedly co-sharers of the suit property. The exclusion of the alleged co-sharers from the array of parties creates a serious procedural flaw, especially the nature of the claim and the relief sought in the suit. The prayer of the suit reads as follows: "It is therefore, respectfully prayed that a decree for declaration to the effect that the plaintiff are absolute owner in possession of suit land measuring 732 kanals 12 marlas bearing khewat No.322, khatooni No.959/1, Khasra No.2129, situated at Mouza Mughal, Tehsil and District Rawalpindi, vide written Memorandum of Gift dated 27.01.2016 and no one else has any right, title or interest with the suit land and a decree for mandatory injunction directing the defendants to incorporate the name of plaintiff as owner of suit land in their relevant record, may kindly be passed in favour of plaintiff and against the defendants with costs." This prayer, seeking an absolute declaration of ownership and mandatory directions only against the Additional Collector, Tehsildar and Patwari Circle, Rawalpindi, clearly impacts the rights of other potential stakeholders, particularly Respondents Nos. 1 to 8, who were neither impleaded nor provided an opportunity to contest the claim. Such a procedural lapse goes to the root of the matter and undermines the integrity of the judicial process. The learned trial Court while passing the impugned order has rightly mentioned these facts in the operative paragraph of the impugned order dated 19.09.2018, in the following manner: "As per record, the suit property is joint property whereas main suit was filed only by the Respondent No.1 without impleading all the co-sharers in the suit. Also the very fact of status of suit property as joint property was concealed from then trial Court. These revelations alone are sufficient to qualify the viability of the impugned judgment and decree dated 01.03.2016. Hence, while granting this application filed under Section 12(2) C.P.C. the impugned judgment and decree dated 01.03.2016 is hereby set aside and the case is reopened. The plaintiff is directed to submit amended plaint after impleading all the co-sharers as party to the suit on 25.09.2018." Although the learned trial Court correctly identified the procedural defect in the ex-parte judgment and decree dated 01.03.2016, but it failed to adopt the proper procedure while deciding the Application under Section 12(2) C.P.C. The Respondents had disclosed serious allegations of fraud, collusion and misrepresentation culminating in the said judgment and decree, therefore, summary disposal of the Application was not justified. Reliance is placed on the judgment of the Supreme Court of Pakistan reported as "Muhammad Akram Malik v. Dr. Ghulam Rabbani and others" (PLD 2006 SC 773), wherein it has been observed that "we are of the considered view that misrepresentation and fraud have been alleged in the application preferred under section 12(2) C.P.C. as is indicative from para 6 of the application which has been reproduced in the order impugned. In fact the learned trial court has not appreciated the contents of application in the light of provisions as contained in section 12(2) C.P.C. and dismissed the same in a casual and cursory manner. In view of the circumstances of the case and allegations levelled in the application under section 12(2) C.P.C. it should have not been dismissed summarily. The learned High Court has exercised its discretion judiciously and the order impugned being well based does not warrant interference as no prejudice whatsoever has been caused to the petitioner who would have ample opportunities to canvas his point of view and subsistence his claim and rebut the allegation of misrepresentation and fraud and before the Court concerned. "Moreover, the trial Court should have to frame necessary issues and record evidence of the parties, particularly as the ex-parte judgment and decree had also been passed without recording evidence. This procedural lapse undermines the integrity of the judicial process and warranted a more detailed inquiry. In this regard guidance is sought from the judgment of the Hon'ble Supreme Court of Pakistan reported as Lahore Development Authority through Director-General V. Arif Manzoor Qoureshi and others (2006 SCMR 1530), wherein it has been held that "We have heard the learned counsel for the parties at length and have also perused the available record. We find that the application under Section 12(2), C.P.C. of the petitioner disclosed serious allegations of fraud, collusion and misrepresentation culminating into the judgment and decree dated 22-7-1998. From the very nature of the allegations of the petitioner, summary disposal of the application under section 12(2), C.P.C. was not justified. In the facts and circumstances of the case, it was necessary for the trial Court to have framed necessary issues and recorded evidence of the parties particularly when the judgment and decree, dated 22-7-1998 had also been passed without recording evidence of the parties. The learned counsel for the petitioner as well as the Director-General of the Authority brought to our notice that an inquiry had also been held and finalized as directed by this Court in respect of the property in dispute. The impugned judgment passed by the High Court is not sustainable at law." Hence, the learned trial Court erred in law by summarily disposing of the Application under Section 12(2) C.P.C., as the allegations raised by the Respondents required adherence to procedural requirements to ensure a just and fair adjudication.

7. In view of above, this writ petition is allowed, the impugned orders dated 29.03.2019 and 19.09.2018, passed by the learned Courts below are hereby set aside; and the matter is remanded to the learned trial Court with the direction to allow the relevant parties to become a necessary party, frame proper issues, allow them to lead evidence and then decide the Application under Section 12(2) C.P.C. afresh in accordance with law, within a period of three (03) months. SA/F-4/L Petition allowed.