1999 PLP 2214 (YLR)

"It is not incumbent upon a Court where application under section 12(2), C.P.C. is filed in each case to frame issues because it depends upon the nature of allegations levelled in the application and, therefore, in the instant case argument that it was necessary for the learned executing Court to frame issues falls to the ground because the learned executing Court did not feel satisfied on the allegation made in the application to frame issues and I also do not find myself in disagreement with the said finding. Reference in this regard can also be made to 1990 CLC

366. The documents of Excise and "Taxation Department relied upon by the appellant also do not in spite confidence which start from 1984‑85 and the manoeuvring of said documents cannot be ruled out. Similarly the document on the basis of which the appellant claims title does not create or transfer any right in favour of the appellant. The application filed by the appellant is an attempt to defeat the decree and its fruit to the respondent No.1. Appeal is without merit and is, therefore, dismissed." The admitted facts between the parties are reproduced hereunder in cronological order to resolve the controversy between the parties:‑‑ (i) 29‑10‑1981 Agreement to sell between the petitioner's husband and respondent. (ii) Respondent filed a suit for specific performance. (iii) 18‑7‑1984. Suit decreed. (iv) 1984. petitioner's husband filed appeal. (v) 13‑1‑1987. Appeal dismissed. (vi)1987. Petitioner's husband filed revision before this Court. (viii) 2-2-1992 Respondent No.1 filed execution petition. (ix) 28‑4‑1993 Petitioner filed objection petition and application under section 12(2), C.P.C. The aforesaid facts clearly reveal that petitioner filed an application under section 12(2), C.P.C after 11 years on the basis of oral gift dated 30-12‑1975 It is, however, to be kept in mind that generally provisions of section 12(2), C.P.C. are invoked by an unsuccessful litigant as a last resort and it is not obligatory for the Court to give to such move 'treatment' of a civil suit and embark upon determination of controversy involved, all over afresh. Bona fides of the applicant and apparent soundness of his averments have to be examined preliminarily by the Court and if it does not find itself persuaded to believe what is being pleaded by the petitioner, it may refuse to proceed further, since a detailed inquiry to be undertaken in the manner of a civil action, which is likely to stretch over years, may amount to subjugation to crafty designs of a clever litigant, that may bring in its wake frustration to the decree‑holder or the rightful claimant. In the present case, the petitioner's plea is not just restricted to the allegation that the proceedings had been conducted, to his absolute ignorance; what he maintains is that her husband and respondent No. l had acted in active connivance with each other to keep her in complete dark. However, if that in fact had been the case, the litigation would not have consumed so many years. Application of the petitioner does not reveal that the relationship of the petitioner and her husband became strained. Both the Courts below after proper scrutiny of the application exercised their discretion that the application is filed by the petitioner malafidely to frustrate the decree of the Court. I am, therefore, of the clear view, that if the Court comes to the finding that an application under section 12(2), C.P.C. is improper, mala fide and has been made only to protract the proceedings and to abuse the process of the Court, the Court can dismiss the same summarily without framing any issue or recording any evidence. To hold that the Court should frame issues and record evidence in every application filed under section 12(2), C.P.C. even before dismissing it would amount to give a licence to unscrupulous litigants to protract the proceedings and perpetuate their unlawful possession and to see that there is no end to the proceedings. I am fortified by the following judgments:‑‑ (i) PLD 1994 Kar. 319 (Mian Abdul Qayyum's case). (ii) 1993 SCMR 662 (Ghulam Muhammad's case). (iii) 1997 CLC 1774 (Zahid Bashir's case). (iv) 1993 CLC 1024 (Farooq Ahmad's case). Petitioner remained silent till the controversy has been finally decided up to the High Court and that the respondent filed an application for execution of the decree after 11 years. Therefore, application is also liable to be dismissed as time‑barred. I am fortified by the following judgments: ‑‑ (i) 1992 CLC 1958 (Kahlil Ahmad's case). (ii) 1991 SCMR 1028 (Safia Khatoon's case). Learned counsel for the petitioner failed to point out any illegality and material irregularity committed by both the Courts below.

5. In view of what has been discussed above, the revision petition has no force and the same is dismissed. Q.M.H./M.A.K./H‑89/L Revision dismissed.