2001 SCMR 46 (PLP)

DEEDAR HUSSAIN SHAH, J.

Facts giving rise to this petition for leave to appeal are that the petitioner and his real brother Muhammad Rafiq, deceased respondent No.2 purchased two lots of agricultural land through open auction from Thal Development Authority in the year 1954 The proprietary rights were granted to the purchaser which were duly mutated in their names by the Revenue Authorities. The petitioner and respondent No.2 are in possession of the land. The Colonization Officer vide order, dated 17-2-1959, sanctioned an internal path through the said land but the same was not implemented till 21-4-1983. Respondent No.1 approached the Settlement Officer who ordered the implementation of the order passed by the Colonization Officer. The respondents Nos.2 to 5 challenged both the orders, dated 17.2-1959 and 21-2-1983 through a civil suit filed in the Court of Civil Judge, Layyah. The suit was contested by respondents Nos.1, 6 and 7 who submitted their written statement denying all the averments made in the plaint. The Civil Judge decreed the suit vide judgment, dated 10-4-1985.

2. The judgment and decree passed by the Civil Judge, Layyah was assailed by respondent No.1 in appeal which came up for hearing before the District Judge, Layyah. During pendency of the appeal a compromise was effected between the parties and in terms thereof the decree of the Civil Court was modified vide order, dated 9-10-1985. Challenging the order, the petitioner on 7-10-1997 filed an application under section 12(2), C.P.C, which was contested by the respondents Resultantly, the same was dismissed. Civil Revision filed by the petitioner before the learned Lahore High Court was also dismissed vide judgment, dated 28-4-2000. Hence this petition.

3. We have heard Mr. Zafar Iqbal Chaudhry, learned counsel for the petitioner who contended that the Appellate Court dismissed the application C.P.C. without framing issues and affording an opportunity of producing evidence of the petitioner; that the petitioner is resident of Faisalabad and he was not party to the suit filed by the respondents as he had strained relations with his brother who did not implead the petitioner in the suit and that this very ground required factual inquiry which could have been resolved by producing the evidence. Mr. Zafar further submitted that the internal path was sanctioned by the Colonization Officer in the year 1959 without hearing the petitioner the same is not a valid order.

4. We have gone through the material placed on record. In all fairness it would be pertinent to refer to the application under section 12(2). C.P.C. in which the petitioner had not stated that he had strained relations with his brother and nowhere he had requested the Court that issues be framed and that evidence in the matter be recorded.

5. Admittedly, the petitioner and respondent No.2. Muhammad Rafiq are the real brothers and they are in the joint possession of the property. The contention of Mr. Zafar Iqbal Chaudhry, learned counsel for the petitioner, that the petitioner is resident of Faisalabad, therefore, he had no knowledge about the previous litigation viz., the civil suit, the appeal tiled against the order of the Civil Judge and the compromise arrived at between the parties before the District Court, Layyah, is not tenable. In the petition address of petitioner is described as 142/T.D.A., Teshil and District Layyah. Even if the contention of the learned counsel that the petitioner resided at Faisalabad and he was not in the knowledge of the events which had occurred, is accepted even though it does not sound reasonable, inasmuch as the petitioner during this period must have visited the land which is a citrus garden, for getting mesne profit and other produce of the land from his brother. Bone of the contention is the internal path which was sanctioned by the Colonization Officer which ultimately ended with a compromise between the parties which was accepted by the District Judge and -the decree passed by the Civil Judge was modified accordingly. Even, according to the said compromise, the implementation for using internal path was postponed for a further period of ten years so that citrus garden of the respondent might not be damaged after expiry of, the said period, the petitioner filed the application under section 12(2), C.P.C. whereas he remained silent expectator for a period of about 38 years whereby the order passed by the Revenue Officer attained finality and thus created a vested right in favour of the respondent. It is strange enough to note that during the pendency of civil suit and the appeal though the petitioner being real brother of respondent No.2 did not make efforts to get himself impleaded as a party either in the suit or in the appeal but he was merely watching the proceedings. The main contention of the learned counsel for the petitioner before this Court is that the District Judge did not formulate the issues and record the evidence which is a necessary requirement of law.

6. There can be no cavil with this proposition that the determination of allegations of fraud and misrepresentation ordinarily involve investigation into a question of fact and in such cases an inquiry is ordinarily to be held to decide the matter. 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 lapse of so many years he filed application under section 12(2), C.P.C.

7. We have minutely gone through the order of the District Judge, Layyah, dated 13-5-1998 and carefully examined the findings of the learned Lahore High Court. In our opinion non-framing of issues and non-recording of evidence for the decision on the application under section 12(2), C.P.C. is not a condition precedent in this matter. This Court while deciding the case of Ghulam Muhammad v. M. Ahmad Khan and others (1993 SCMR 662) has observed as under:-- 'It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions off fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, 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, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. "

8. In Anuran Bibi and others v Muhammad Ramzan and others (1999 SCMR 1334) this Court has laid down the rule which a as follows:-- "it is not the requirement of law that the Court while, dealing with the allegation under section 12(2), C.P.C. must in all circumstances frame issues, record evidence and follow procedure prescribed for decision of the suit. The question whether or not the issues are to be formulated and evidence of the parties recorded in resolving the allegations of fraud and misrepresentation, depends upon the facts of each case in consonance with justice. " It was further observed that:-- "the impugned order was passed by the learned Judge in Chambers after hearing both the parties but the petitioners never sought permission to produce evidence in support of their application nor there was any prayer for formulation of issue at the time of hearing of the application." The above principle has again been reaffirmed by this Court in Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 in the following terms:-- "While dealing with allegations under section 12(2), C.P.C.. it wars not incumbent upon Court that it must, in all circumstances, frame issues, record evidence and follow procedure prescribed for the suit .

9. The petitioner being real brother of respondent No.2 kept quite for so many years and when respondent No. l was able to get the fruit of the decree i.e. for the use of internal path sanctioned ,by the Colonization Officer, the petitioner with some ulterior motives approached the District Court, Layyah with the application to delay the matter so that respondent No. l may not be able to get the fruit of the decree and he may not be able to use the internal path sanctioned by the Colonization Officer and confirmed by the decree of the Court. As pointed out earlier, we are of the firm view that the formulation of issues and recording of evidence was not necessary. The District Judge as well as the learned Judge in Chambers have properly considered the material placed before them and they have rightly dismissed the application of the petitioner with sound and convincing reasons. We find no infirmity and or illegality in the judgment of the learned High Court warranting any interference by this Court. For the above reasons, this petition is dismissed alongwith C.M.A.No.474 of 2000 and leave is refused.