2020 PLP 1491 (CLC)

WIQAR AHMAD, J.

My this order is directed to dispose of W.P. No. 49-M/2017 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The petitioner along with others had instituted a suit in the Court of learned Senior Civil Judge Timergara for declaration to the effect that he had been co-owner and in possession along with other plaintiffs to the extent of 2/5 shares in the suit property, lists of which were annexed with plaint as Annexures "A", "B" and "C"; that the defendants had got no right to deny the rights of ownership of the plaintiffs in any manner in the property and to the extent described above. Further consequential reliefs have also been prayed for in the suit. The suit had been instituted through attorney namely Wazir Zada who was also plaintiff No. 1 therein. The suit proceeded and written statements were filed. On 04.12.2014 an application was filed before the Civil Court disclosing therein that a compromise had been effected between the parties and the suit be disposed of on the basis of the said compromise. Plaintiffs were represented by their attorney as well as counsel before the Court while attorney for defendants and their counsel also appeared on the same date i.e. 04.12.2014. Joint statement of the parties was recorded and compromise deed was exhibited therein as Ex. PB. The power attorney of the petitioner and other plaintiffs was also exhibited in the said statement as Ex. PA. In view of the compromise deed Ex. PB and joint statement of the parties, suit was dismissed as withdrawn. Thereafter, the plaintiffs filed another suit in respect of the same property which was rejected under Order VII, Rule 11, being barred by Order XXIII, Rules 1 and 2 C.P.C. The petitioner thereafter filed an application under section 12(2), C.P.C which was also dismissed vide order dated 06.04.2016 of the learned Civil Judge/Illaqa Qazi-II Timergara Dir Lower. The petitioner filed a revision petition against the said order which was dismissed vide order dated 23.11.2016 of the Court of learned Additional District Judge/Izafi Zila Qazi Chakdara Dir Lower. Then the petitioner filed the instant writ petition with the following prayer; "It is, therefore, humbly prayed that on acceptance of this writ petition, the order/judgment/decree of both the Courts below may be set aside and the application of the petitioner under section 12(2), C.P.C. may be decreed or remand the case to lower Court with direction to decide the same on merits. Any other remedy, which this Hon'ble Court deems fit, may also be awarded in favour of petitioner against respondents."

3. The learned counsel for the petitioner argued that the petitioner had been subjected to fraud and misrepresentation and therefore he was right in his act of filing a petition under section 12(2) but same was dismissed without recording of any evidence, resulting into miscarriage of justice.

4. The learned counsel for the respondents opposed the learned counsel for the petitioner and contended that the compromise had been for consideration and thereafter the suit was withdrawn. He further added that the petitioner and his attorney were real brothers and that admittedly he had executed power of attorney in his favour, therefore he cannot be allowed to retrace the steps taken by his attorney on his behalf.

5. I have heard arguments of learned counsel for the parties and perused the record.

6. Perusal of record reveals that in Para 1 of the application under section 12(2), C.P.C. the petitioner had admitted that he along with other plaintiffs had instituted a suit against the defendants. The said Para is reproduced hereunder for ready reference; The petitioner denied the factum of entering into any compromise as well as appointing and constituting any special attorney in the Paras following thereafter. Prior to instituting of under section 12(2) application by the petitioner he had filed a second suit in the Civil Court, copy of which has been annexed with the writ petition as Annexure "I". Perusal of the contents of the said suit reveals that the petitioner had nowhere disowned the appointment of the special attorney or his counsel. He had rather owned the filing of the suit in Para 5 of the plaint, which is also reproduced for ready reference; In the plaint he had only disowned the factum of compromise. The plaintiff/petitioner had also been verbally examined by the Court of learned Additional District Judge Chakdara, which fact has been recorded in the impugned order that he had stated that the amount received by the attorney had not been paid to him according to his share. In such a situation, the case becomes clear that the appointment of special attorney and filing of the suit was not only in knowledge of the petitioner but had been done with his consent. In the power of attorney the authorization to enter into any arbitration, settlement or compromise had been expressly conferred on special attorney. The case comes out to be the one where the attorney according to the petitioner have done fraud with him. No case of fraud or misrepresentation comes out of the available record against the defendants in the suit or anyone else. When an attorney defrauds a persons, the only remedy available to him is to sue his attorney in damages or for recovery of the specific amount if he had received any of such amount on his part. The other parties may not be dragged into litigation just because of the fact that an attorney has allegedly committed some fraud with any person. Reliance in this respect is placed on the case of "Mst. Shabana Irfan v. Muhammad Sham Khan" reported as "2009 SCMR 40" as well as on the case of "Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation" reported as "PLD 1996 Supreme Court 213".

7. Another issue raised by learned counsel for the petitioner was that his application under section 12(2), C.P.C. had been dismissed without recording of evidence, in a summary manner and without affording the opportunity to the petitioner to substantiate his case. It is evident from the facts mentioned above that the attorney had filed a suit after being so authorized through a written power of attorney, available on file. Similar view could also be gathered from the record available before the Civil Court, safely. Recording of evidence in the case in hand would not make the case of the petitioner any different from the one which he has it at hand now. By production of evidence the facts establish and opinion formed above cannot be changed. In such a situation, recording of evidence would make no difference. While dealing with an application under section 12(2), C.P.C. a Court is not always obliged to carry out the full exercise like a regular civil suit. Legislature has left it to the discretion of the Court while dealing with an application under section 12(2), C.P.C, to decide it on case to case basis, whether a. factual inquiry is required in the circumstances of the case or not. If the Court comes to the conclusion that the material available on record can safely be utilized for making a just decision on the application under section 12(2), according to law, then recording of evidence may be avoided. In the case in hand also there was no need of further evidence. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Shabana Irfan v. Muhammad Sham Khan" reported as "2009 SCMR 40" in Para 7 of the judgment held as follows; "Needless to add that petition under section 12(2) of the C.P.C. can be decided summarily by the learned Court, which has passed the final judgment, decree or order in dispute, when there are admitted facts, documents between the parties. There is no need to prolong the litigation, when the case ex facie appear to have not been filed in a wrong jurisdiction, and when fraud or misrepresentation was not involved therein the case or in the transaction. The matter and dispute in between the principal and the agent cannot affect the third party, as the aforementioned third party is not privy to the alleged fraud, misstatement, misrepresentation or wrong doing of the agent, if any committed by the agent with his principal." The said judgment covers both the aspects viz recording of evidence as well as fraud with a person by a duly constituted attorney and therefore same is squarely applicable to the facts of the present case.

3. In the light of what has been discussed above, the writ petition in hand is dismissed. SA/52/P Petition dismissed.