2013 PLP 933 (YLR)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of order dated 1-7-2009 passed by the learned Civil Judge Ist Class, Okara whereby an application under section 12(2), C.P.C. moved by him was dismissed and judgment and decree dated 16-11-2009 passed by the learned Additional District Judge, Okara whereby civil revision preferred by him met the same fate.

2. The facts in brief as emerge on perusal of the record are that the respondent No.1 filed a suit for possession through specific performance of the contract against the petitioner in respect of land measuring 11-Kanals 3-Marlas owned by him as per description given in para No.1 of the plaint. It was contended that the defendant/petitioner entered into an agreement to sell the said land vide deed dated 15-5-1998 for a sum of Rs.80,000 and received a sum of Rs.30,000 as earnest money. It was agreed that the sale proceedings would be finalized till 5-1-1999 on payment of remaining sum of Rs.50,

000. Allegedly the defendant/petitioner refused to receive the remaining price and get the mutation attested.

3. The defendant/petitioner contested the suit and denied the execution of agreement deed. The suit was fixed for 11-5-1999 but on 14-4-1999 the file was put up in presence of counsel for the parties and the defendant/petitioner made a statement that he had no objection on passing of the decree in favour of the respondent. Accordingly, the learned trial court proceeded on to pass the judgment dated 14-4-1999, whereby the suit of the respondent/plaintiff was decreed. On 11-10-2007, the petitioner moved an application under section 12(2), C.P.C. It is contended that he had already entered into an agreement to sell with one Waris son of Malla in respect of the same land vide deed dated 27-12-1997 and had received total sale price of Rs.4,50,000 but the plaintiff/respondent filed the suit for specific performance of the contract with ulterior motive in 1999. The petitioner engaged Mr. Muhammad Aslam Javed, Advocate and contested the suit through the written statement filed by him but the respondent/plaintiff, who is a clever person, assured the petitioner that he wanted to withdraw the suit and their statements are to be recorded in this regard. He was in collusion with the reader of the Court and under a plan got the thumb impression of the petitioner affixed on the order sheet and succeeded in obtaining a decree in his favour. He contended that his new counsel was appointed by the defendant/petitioner himself and his counsel Mr. Muhammad Aslam Javed, Advocate was not present. It is stated that Waris son of Malla filed the suit for specific performance of the contract and also an application under section 12(2) C.P.C., in which the petitioner and respondent both were impleaded as respondents so he could not file the application under section 12(2), C.P.C. earlier. With these averments, it was prayed that the decree be set aside.

4. The respondent/decree-holder contested the petition. It is urged that the petition is barred by time; that the petitioner appeared in the court, made the statement in presence of his counsel who also put his signatures on the same; that in the previous application under section 12(2), C.P.C. it was categorically held that the decree was not result of fraud and mis-representation and the appeal filed by Waris in respect of the findings of the court was also dismissed so the petitioner has started the second round of litigation after expiry of almost 8 years.

5. The learned counsel for the petitioner has contended that the petitioner had filed the written statement on 16-3-1999 and had categorically denied the execution of the agreement to sell and receipt of the earnest money so there was no need for him to make any admission on 14-4-1999 when the actual date of hearing fixed by the court was 11-5-1999 and the file was wrongly and illegally taken up on 14-4-1999; that due to collusion between the respondent and Reader of the Court his statement was not correctly recorded and that the respondent had assured him that the statement was being made for withdrawal of the suit and that there was controversy between the parties on material propositions of fact and law and as such the petition could not have been decided without framing of the issues and recording of the evidence and appraisal of the same so both the courts below have committed material irregularity and have failed to perform their duties in accordance with law. In support of the contentions, reliance is placed on 2011 SCMR 1013 and 2006 SCMR 1530.

6. On the other hand, the learned counsel for the respondent has contended that the petitioner has not appended the copy of application moved before the learned trial court for recording his statement on which the orders were passed for putting up the file on 14-4-1999 and in consequence thereof the file was taken up on the said date in presence of the learned counsel for the petitioner and his statement was recorded in open court and he affixed his thumb impression in token of its correctness. It is urged that the petitioner attained the knowledge about the passing of the decree when he appeared in the application under section 12(2), C.P.C filed by Waris son of Malla his real maternal uncle but did not move any application raising objection about the judgment and decree at that time so the petition having been moved after more than 8 years is hopelessly barred by time; that the respondent had deposited the remaining sale price of Rs.50,000 in the government treasury under the orders of the court and the petitioner had withdrawn the same so his contention that the decree was passed due to any misrepresentation is totally false and self concocted; that he admits his presence and affixation of thumb impression on his statement so the order to take up the file on 14-4-1999 does not suffer from any illegality or infirmity; that in the earlier round of litigation starting from the application under section 12(2), C.P.C. filed by Waris son of Malla it has been held that the decree was passed without any fraud or misrepresentation so the application moved by the petitioner was hit by principle of res judicata. In support of the contentions, reliance is placed on PLD 2004 SC 178, PLD 1987 SC 145, 2006 SCMR 1262, 1994 MLD 295(Lahore) and PLD 2005 SC 430.

7. The petitioner does not deny his appearance in the court on 14-4-1999 and affixation of his thumb impression on the order sheet. The contention that the file was wrongly taken up on 14-4-1999 whereas the actual date of hearing was 11-5-1999 loses significance because he was present in the court along with his counsel who had also put his signatures for verification of the statement of the petitioner. The petitioner has not appended the application on which the orders were passed for fixation of the suit for 14-4-1999. It is also admitted by him that he was a party in the application under section 12(2), C.P.C. filed by Malla his real maternal uncle and attained knowledge of the impugned judgment and decree passed against him on 22-7-1999. No explanation has been given as to why he kept mum for a long period spreading over 8 years. No period of limitation is prescribed for presentation of application under section 12(2), C.P.C so it falls under Article 181 of the schedule of Limitation Act, 1908 and could have been filed within three years of accruing of the right to apply, which had accrued in favour of the petitioner on 22-7-1999. The petition was hopelessly barred by time. It is also admitted that after recording the evidence in the application filed by Waris son of Malla the learned trial court had held that the impugned judgment and decree was not result of fraud or misrepresentation. The petitioner and respondent No.2 both were respondents in the above said application under section 12(2), C.P.C. moved by Waris. The findings of the learned trial court were confirmed by the revisional court and attained finality. As the questions for determination in the previous application under section 12(2), C.P.C. and the application moved by the petitioner were directly and substantially the same so the principle of res judicata as embodied in section 11, C.P.C. was clearly attracted in view of the previous orders of the courts of competent jurisdiction. The petitioner had appeared in the court. His statement was recorded by the learned Presiding Officer and it was read over to him and thereafter he put his thumb impression. His identity card number is also written on the same and his learned counsel had also put his signature. A presumption of correctness is attached to the judicial proceedings so the contention of the petitioner that the statement was made for withdrawal of the suit has no legs to stand because any statement for withdrawal of the suit was to be made by the plaintiff/respondent and not by the defendant/petitioner. In view of these facts which float on the surface of the record, no issue was required to be framed so impugned order is not infirm as contended by the learned counsel for the petitioner. The case-law cited at the bar by the learned counsel for the petitioner is not applicable on the facts of the present petition. Admittedly, the petitioner had also withdrawn a sum of Rs.50,000 deposited by the respondent/plaintiff as remaining consideration in the government treasury so he is estopped by his conduct to deny the validity of the judgment and decree.

8. For the reasons supra, the petition is without merits and the same is dismissed with costs. KMZ/K-19/L Petition dismissed.