2006 PLP 677 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

Briefly stated the facts of the case are that one Lal Din plaintiff-respondent No.1 (herein) had filed a suit for specific performance of the agreement to sell dated 18-12-2003 for a consideration of an amount of Rs.3 00 000. in the Court of learned Civil judge. Pasrur. against Muhammad Yusuf defendant petitioner (herein). It was asserted in the plaint That in compliance with the agreement to sell, an amount of Rs.60,000 was paid as earnest money and the remaining amount was to be paid at the time of registration of-sale deed. On 21-2-2004, an application was filed before the Duty Civil Judge who summoned the file of the case where the plaintiff and his counsel made a statement and handed over a cheque valuing Rs.2,40,000 in the name of defendant to be encashed in National Bank of Pakistan, Main Branch, Pasrur. The statements of the parties and their counsels were recorded' ant' as a sequal thereof, the trial Court on assuming its duty vide judgment and decree dated 27-4-2004, decreed the suit. On 17-6-2004 an application under section 12(2), C.P.C. had been filed by the defendant through his son Tahir Hussain for setting aside the ex parse decree, asserting therein that the defendant being an infirm and rustic person aged about 75 years is unable to pursue the case and the application, therefore, the said application filed through his son. It is further alleged in the application that plaintiff/respondent being a clever person has availed the benefit of infirmity of defendant applicant and on 29-1-2004 convinced the applicant defendant to make a statement and thumb-mark the same. He denied the making of statement before the Court and prayed for setting aside the judgment and decree on the basis of fraud and misrepresentation

2. The said application was contested by the other side and the trial Court through order dated 5-1-2005 dismissed the same. Thereafter, on 8-2-2005 another application had been filed by the defendant petitioner, taking a different stand to the effect that plaintiff respondent had induced him to go for performance of 'Umra' and if did not opt to go now then his children would not allow him to go and he manoeuvred a forged agreement to sell, showing payment of Rs.60,000 to him. He denied the execution of' agreement to sell. This application had also been contested by the opponent and the trial Court vide order dated 2-6-2005 also dismissed the same observing that it is a frivolous and baseless application and not maintainable.

3. Feeling aggrieved, the present petitioner preferred a revision petition which came up for hearing before the learned Additional District Judge, Pasrur, who vide impugned judgment dated 28-10-2005 dismissed the same, affirming the findings of the trial Court.

4. Learned counsel for the petitioner contended that the trial Court had dismissed the application under section 12(2), C.P.C. filed by the petitioner without framing of issues and recording of evidence and the petitioner had been deprived of his right establishing his case. He further argued that the trial Court while passing the judgment and decree had not complied with the provision of Order XXIII, rule 3, C P C. and the parties were not directed to adduce into writing the compromise. effected between them He relied on cases of Pirzada Mumtazuddiii J. Farukh Sultana (PLD 1960 (W P ) Karachi 409), Gurpreet Singh v. Chautur Bhuj Goel (AIR 1988 SC 400) and Andleeb Sahir Butt v. Raja Naveed Hussain (2000 YLR 2831).

5. I have heard the learned counsel for the petitioner and perused the record

6. It is admitted position that two applications under section 12(2), C.P.C. had been filed one after the other First application had been filed by the petitioner through his son, where he had categorically asserted that his father being infirm and illiterate person, aged about 75 years, was not in a position to pursue the case so the application is being filed through him and the plaintiff respondent No. 1 has taken the benefit of the infirmity of his father in obtaining the decree on the basis of statements/compromise while second application had been filed by the defendant-petitioner himself wherein he had taken a different and contradictory stand.

7. From perusal of these applications there is no denial to the fact that the petitioner had admitted his statement and thumb mark before the Court. Statements of parties and their counsel have been recorded by the Duty Civil Judge, when the application by the parties had been filed before him for recording the said statements but the final order of decreeing the suit had been passed by the trial Judge himself. The stress of arguments of learned counsel for the petitioner was that the compromise had not been effected in true perspective of the provisions of Order XXIII. rule

3. C P.C. but this decree had not been challenged out this ground before next appellate/revisional Court.

8. The petitioner has opted to avail of alternate randy of filing an application under section 12,2), C.P C and if for the sake of arguments it is accepted that the statement of the petitioner was manoeuvred or he was induced due to one reason or the other by the plaintiff-respondent No.1, his counsel was present in the Court in whose presence the statement was got recorded and the petitioner had thumb marked the same. Further, the petitioner had admitted in his subsequent application that cheque valuing Rs.2,40,000 had been deposited in his account, the question is that who has opened the account of the petitioner in the Bank.

9. From the contents of both applications, the case of fraud and mis?representation has not been established by the petitioner.

10. The determination of such allegations ordinarily involve investigation into a question of fact and in such cases an inquiry is ordinarily to be held to decide the matter but the Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit and the matter is left to the satisfaction of the Court which has to regulate its proceedings and the Court may in its discretion adopt any mode for its disposal as laid down in case of Nazir Ahmad v. Muhammad Sharif (2001 SCMR 46).

11. In case of Mst. Nasira Khatoon v. Mst. Aysha Bai (2003 SCMR 1050) the Honourable Judges of the apex Court have held that the Court may dispose of an application under section 12(2), C.P.C. without framing issues, recording evidence of the parties and following the procedure for trial of the suit.

12. The another aspect of the case is that the petitioner has challenged the concurrent findings of the Courts below as well as revisional order of lower Court but the learned counsel for the petitioner miserably failed to point out any illegality or jurisdictional error in it or that the same was perverse, coram non judice and without lawful authority.

13. Resultantly, this petition ?having no force is dismissed in limine. S.A.K./M-1456/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.