2016P4087 (PLP)

QALANDAR ALI KHAN, J.

The instant writ petition is outcome of a protracted litigation between the parties, emanating from a suit by Ghulam Sarwar (petitioner) against Muhammad Javed (respondent No.1) for declaration to the effect that the latter had borrowed an amount of Rs.4,15,000/- from the petitioner/plaintiff and had authorized him to realize his loan from the sale price of house situated in Khasra No. 1913, village Jhangi, if the borrowed amount was not returned by 04.01.2009.

2. The suit for declaration and mandatory injunction was, in fact, aimed at restraining respondent No.1/defendant No.1 from alienating the house in question before repayment of loan. In the plaint, the petitioner/plaintiff had based his claim on pronote and agreement relating to the aforementioned transaction. The suit was resisted by respondent No.1, who, in his written statement, claimed that the suit was aimed at blackmailing him as he had never borrowed the said amount from the petitioner/plaintiff, who was a gambler and had procured the pro note and the agreement through use of strong arms methods, blackmailing and harassment of respondent No.1/defendant No.1.

3. During trial proceedings, the petitioner/plaintiff also filed an amended plaint on 23.01.2010, containing almost the same claim with addition to a prayer for direction to the revenue officers (defendants Nos.2 and 3) to transfer the house in question in his favour. In response to the summons issued by the learned trial Court for his appearance, respondent No.1 attended the Court and also submitted written statement; but subsequently absented himself when the case was transferred from the Court of learned Civil Judge-IX Abbottabad to the Court of learned Civil Judge-IV, Abbottabad; and the case was fixed for rejoinder and arguments on application for temporary injunction. Consequently, respondent No.1 was proceeded against ex-parte and after recording ex-parte evidence, ex-parte decree for recovery of Rs.415000/- with 5 percent profit from 03.01.2007 till payment of the whole amount was granted in favour of the petitioner against respondent No.1, vide order of the learned trial Court/Civil Judge-IV, Abbottabad dated 29.01.2010. In the same order respondent No.1 was restrained from alienating the suit property/house.

4. In execution proceedings based on the mentioned ex-parte decree, respondent No.1/judgment debtor moved an objection petition under Section 47, C.P.C. raising therein almost the same ground which was agitated in the written statement of respondent No.1, but the objection petition was dismissed by the learned Civil Judge-IV, Abbottabad vide order dated 29.01.2011. The appeal of respondent No.1 was also dismissed for having become infructuous after the learned counsel for respondent No.1 submitted attested copy of petition under Section 12(2), C.P.C. moved by respondent No.1 in the mean-time.

5. The application of respondent No.1 under Section 12(2), C.P.C., though vehemently resisted by the petitioner by filing his written reply, was entertained and fixed for recording pro and contra evidence by the learned Civil Judge-IV, Abbottabad vide order dated 13.01.2012. The revision petition of the petitioner was also dismissed by the learned Additional District Judge-III, Abbottabad vide the impugned order dated 06.11.2012, hence this writ petition.

6. There are certain glaring facts which have been overlooked by the learned Courts below. The execution of pro note and agreement for re-payment of Rs.415000/- is no-where denied by respondent No.1, who furnished his own reason for entering into agreement and executing a pro note for re-payment of the loan by showing the same result of coercion and blackmailing. However, instead of contesting the suit against him for recovery of the said amount on the basis of pro note and agreement, respondent No.1 opted absence from trial proceedings after having participated in the proceedings and having knowledge of pendency of suit and proceedings in the trial Court through his counsel or clerk of counsel before and after transfer of the suit from one Court to another. Therefore, his contention that he was unaware of pendency of suit and proceedings in the suit after its transfer from one Court to another is without force. Anyhow, respondent No.1 again failed to follow legal course by applying for setting aside the ex-parte decree; and, instead, moved objection petition under Section 47, C.P.C. in the execution proceedings, which was dismissed and appeal against the order of executing Court also met the same fate.

7. The learned counsel for respondent No.1 vehemently argued that appeal was not dismissed on merits, rather the same was dismissed for having become infructuous after institution of application under Section 12(2), C.P.C was brought to the notice of the learned appellate Court. Apart from the fact that no justification is forthcoming for filing of application under Section 12(2), C.P.C. after an objection petition under Section 47, C.P.C. had already been moved and dismissed by the learned executing Court, the application under Section 12(2), C.P.C. does not contain even a distant reference to fraud, let alone specific allegation of fraud, which was a pre-requisite for maintainability of an application under Section 12(2), C.P.C. Needless to say that even learned appellate Court observed that the application contained almost all the objections raised by respondent No.1 in the objection petition under Section 47, C.P.C., which was dismissed and appeal was also dismissed.

8. In the circumstances, when the same objections raised in the earlier objection petition under Section 47, C.P.C. were held not sustainable, there was no justification to entertain and proceed with application under Section 12(2), C.P.C. containing the same allegation, and not fulfilling the essential requirement of disclosing fraud and misrepresentation in the impugned decree. Therefore, orders of both the Courts below proceed on wrong premise, and ought to be set aside. This will, hopefully, put an end to the ordeal of the petitioner who is being denied fruits of decree in his favour long ago.

9. Consequently, the writ petition is allowed and impugned judgments of both the Courts below are set aside, as a result whereof application under Section 12(2), C.P.C. of respondent No.1 stands dismissed. SL/243/P Petition allowed.