P L D 2007 Quetta 66 (PLP)

MEHTA KAILASH NATH KOHLI, J.

This petition is directed against order dated 11th March, 2006 passed by Senior Civil Judge I, Quetta, whereby application filed under section 12(2), C.P.C. has been directed to be dismissed on the ground of having failed to produce the list of witnesses and evidence in this regard. Facts of the case, in brief, are that a suit for declaration, partition, possession and injunction etc. was filed by petitioners-plaintiffs in the court of Seniar Civil Judge-I, Quetta. It has been stated that the then alleged attorney, who filed application seeking antedating the matter and thereafter sought permission to withdraw the suit. The relevant order sheet of the trial Court is reproduced hereinbelow: - Record further shows that application under section 12(2), C.P.C. was filed by the present petitioners in the court of Senior Civil Judge-I, Quetta on the ground of collusion and fraud. Notice of the application was given to other side, who filed their reply. Learned trial Court without framing any issue directed for filing of list of witnesses and leading of evidence vide order dated 15th February, 2006 and the matter was adjourned to 11th March, 2006, and on account of non-filing of list of witnesses and production of evidence, application was 'dismissed. Against aforementioned order, present petition has been filed. Notice of this petition was given to the other side. It has been contended by Mr. Iftikhar-ul-Haq, learned counsel for petitioners that no issue was framed by the trial Court; in this regard, no reasonable and proper opportunity was provided to lead evidence. It was further contended by the learned counsel for petitioners that on 15th February, 2006, the case was adjourned for 11th March, 2006 and direction was made 'for filing of list -of witnesses and 'recording of evidence. The petitioners being ladies could not contact their witnesses and obtain necessary documents in this regard. It was further contended that the fair opportunity was not provided to petitioners. On the other hand, Chaudhry Mumtaz Yousaf; learned counsel for private respondents has seriously contested the same and urged that it was mandatory upon the petitioners to have submitted list of witnesses within the stipulated time. I have considered the arguments advanced by parties' learned counsel and perused the record. The first question raised by learned counsel for private respondents is that application was not competent under section 12(2) of the C.P.C. It would be proper to reproduce herein below section 12(2), C.P.C. "

12. Bar to further suit.-(1)

(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." From perusal of above provision of law it is clear that order made by the same court could be challenged and re-called under section 12(2), C.P.C. provided question of fraud etc. is alleged and a separate suit has been clearly barred to be filed before any court of civil jurisdiction. The other contention of respondents' counsel that it was mandatory for the petitioners to have filed the list of witnesses and led the evidence in this regard. It is quite clear that the direction was made to file the list of witnesses, which was admittedly not filed within seven days, however, petitioners belonging to local set up and being womenfolk, not in a position to locate and find out their witnesses during said time. Learned trial court was required to provide further reasonable opportunity to lead evidence in this behalf. Normally three opportunities are provided before taking any action of penal consequences. In the circumstances of the case, the impugned order date 11th March, 2006 is not proper and legal, and thus, is directed to be set aside. The trial Court is directed to frame the issues in this behalf and thereafter provide reasonable opportunity to lead evidence. Consequently, petition is allowed and the case is remanded to the trial Court for decision in accordance with law, with no order as to costs. H.B.T./6/Quetta Order accordingly.