2006 PLP 1530 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner-Lahore Development Authority seeks leave to appeal against order, dated 27-6-2002, passed by the Lahore High Court, Lahore in Writ Petition No.11307 of 2002.

2. The respondent No.1 instituted a suit against the petitioner arid others for declaration and mandatory injunction in respect of the suit property. The suit was decreed by the Civil Judge, First Class, Lahore, by judgment and decree, dated 22-7-1998. On 31-10-2000, the petitioner filed an application under section 12(2), C.P.C. for setting aside the judgment and decree, dated 22-7-1998 which was dismissed, by the trial Court, by order, dated 2-1-2002. The revision petition of the petitioner was dismissed by the Additional District Judge, Lahore, by order, dated 6-5-2002. Thereafter, the petitioner filed Writ Petition No.11307 of 2002 which was also dismissed by a learned Single Judge of the Lahore High Court, Lahore, by the impugned' order, dated 27-6-2002. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner argued that the trial Court fell into an error in dismissing the application of the petitioner under section 12(2), C.P.C. in a summary way without framing any issues and recording evidence of the parties. The learned counsel contended that serious allegations of fraud, misrepresentation and collusion were levelled by the petitioner in obtaining the judgment and decree. It was pleaded in the application that the exemption order of plots were invalid, fictitious and forged one. Similar was the case of exchange and transfer of plot as well as the development charges and transfer fees etc. The respondents Nos.l and 2 were not the lawful transferees of the plots which were the suit property.

4. On the other hand, the learned counsel for the respondents Nos.l and 2 submitted that the suit was decreed by the trial Court after written as well as oral statements of the petitioner and the orders passed by all the Courts including the impugned order did not suffer from any infirmity.

5. We have heard the learned counsel for the parties at length and have also perused the available record. We find that the application under section 12(2), C.P.C. of the petitioner disclosed serious allegations of fraud, collusion and misrepresentation culminating into the judgment and decree dated 22-7-1998. From the very nature of the allegations of the petitioner, summary disposal of the application under section 12(2), C.P.C. was not justified. In the facts and circumstances of A the case, it was necessary for the trial Court to have framed necessary issues and recorded evidence of the parties particularly when the judgment and decree, dated 22-7-1998 had also been passed without recording evidence of the parties. The learned counsel for the petitioner as well as the Director-General of the Authority brought to our notice that an inquiry had also been held and finalized as directed by this Court in respect of the property in dispute. The impugned judgment passed by the High Court is not sustainable at law.

6. For the foregoing reasons, this petition is converted into an appeal and is allowed with no order as to costs. Consequently, the impugned order, dated 27-6-2002 passed by the Lahore High Court, Lahore, in Writ Petition No.11307 of 2002 as well as the orders dated 2-1-2002 and 6-5-2002 respectively passed by the trial Court as well as by the Additional District Judge, Lahore, are set aside. The application under section 12(2) of the petitioner shall be deemed to be pending which shall be disposed of by the trial Court within a period of six months after framing necessary issues and recording evidence of the parties. S.A.K./L-6/SC Appeal accepted.