2023 PLP 1399 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the wires of remand order dated 13.09.2019 passed by the learned Addl. District Judge, Lahore who accepted the Revision Petition of respondent No.2/Shahbaz Hameed by setting aside the order dated 11.06.2019 passed by the learned Civil Judge, Lahore remanded the matter to the learned trial court to decide the application under Section 12(2), C.P.C. filed by respondent No.2 after recording the evidence of both the parties strictly in accordance with law.

2. Brief facts of the case are that respondent No.3 Muhammad Abdullah was allegedly the owner of the suit property. He entered into an agreement of sale with respondent No.2/ Miss Shahbaz Hameed regarding land measuring 2 Marlas 168 square feet on 11th of March 2002. A dispute arose between vendor / respondent No.2 and vendee / respondent No.3/Miss Shahbaz Hameed. Latter instituted a suit for specific performance of the agreement. In the said suit a compromise was arrived at between respondents Nos.2 and 3 and the learned trial Court decreed the suit on the basis of compromise on 22nd of October 2014 and under the command of the said compromise decree, a sale deed No.12639 dated 15th October 2004 was accordingly executed in favour of respondent No.2 Miss Shahbaz Hameed. Petitioner on getting knowledge of the above sale deed, filed application under Section 12(2) CPC for setting aside the judgment and decree in favour of respondent No.2 on the ground that prior to the agreement of respondent No.2, the petitioner had an agreement in his favour with defendant No.3 and possession of the land was rested with the petitioner. He pleaded fraud and inter se collusivity of the respondents Nos.2 and

3. The said petition was accepted by the learned trial court who vide order dated 11.06.2019 set aside the judgment and decree dated 79 10.2004 as well as the sale deed. Against the above order, respondent No.2 filed Civil Revision, which was accepted by the learned Revisional Court vide order dated 13.09.2019 and after setting aside the impugned order dated 11.06.2019, remanded the matter to the learned trial court to decide application under section 12(2), C.P.C. after recording the evidence of the parties strictly in accordance with law. Hence, this writ petition.

3. I have heard the arguments of the learned counsels for the parties and gone through the record with their able assistance.

4. The petitioner's stance in the petition under section 12(2), C.P.C. was that he (petitioner) on acquiring the knowledge of sale deed in favour of respondent No.2, filed an application under section 12(2), C.P.C. on the ground that he had a prior in time agreement to sell dated 25th of February 2004 with respondent No.3/defendant of the suit namely Abdullah than that of the agreement of the vendor with Miss Shahbaz Hameed, respondent No.2, as such the subsequent agreement with respondent No.2, filing of suit for specific performance making of conceding statement of the said suit by the vendor, passing of compromise decree as well as registration of sale deed in favour of respondent No.2 are result of fraud, collusivity between respondents Nos.2 and 3.

5. The core controversy before the learned trial Court was to determine that which agreement (the agreement in favour of the petitioner or agreement in favour of respondent No.2) was prior in time. This factual controversy could only be decided after framing of relevant issue and recording evidence of the respective parties. As per record, this exercise has been avoided by the learned trial court, who in a hasty manner, reversed the judgment and decree as well as the registered deed in favour of respondent No.2.

6. By casting glance at the contents of the respective adversial pleadings of the parties, it evinces that the lis contained factual as well as legal questions, which could only be decided after framing of relevant issues and recording of evidence, whereas the summarily determination made by the trial court on the application under Section 12(2), C.P.C. has no backing of law and the trial court in an indecent haste, has proceeded to allow the application under section 12(2), C.P.C. and this kind of non-observance of principle of law vitiates the sanctity and validity of the order of the trial court. Reliance is placed on case cited as Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003) wherein the Honble Supreme Court of Pakistan has held as under: "The petitioner has raised an important question relating to the concealment of material fact by the parties in the appeal and it being a mixed question of .law and facts would need proper determination through detailed scrutiny of facts with or without recording of evidence as the case may be." Another reliance is placed on Lahore Development Authority through Director-General v. Arif Manzoor Qureshi and others (2006 SCMR 1530) wherein the Hon'ble Supreme Court of Pakistan has held as under: "

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 the case, it is 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." Another reliance is placed on the case titled as Muhammad Akram Malik v. Dr. Ghulam Rabbani and others (PLD 2006 SC 773), relevant portion whereof is reproduced as under: "

4. We have examined the above-mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned whereby the revision petition preferred on behalf of respondent has been accepted. There is no cavil with the proposition that an application preferred under section 12(2), C.P.C. could have been summarily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality such application should have not been dismissed summarily and without recording the evidence. It is worth mentioning that primarily it is the satisfaction of the Court concerned either to frame issues, record evidence or decide such application as may be deemed fit and proper after considering the merits of each case. No yardstick can be fixed for rejection of such applications. A similar proposition was discussed in case Ghulam Muhammad v. Ahmed Khan 1993 SCMR 662 wherein it was observed as follows:-- "It is correct that the determination of allegations of fraud and misrepresentation, usually involved investigation into the questions of fact but it is not in every case that the Court would be under obligations to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view "the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand.

5. It is well-entrenched legal proposition that the framing of issues depends on the circumstances of each case, nature of alleged fraud and the decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate object of section 12(2), C.P.C. which is to avoid, protracted and the time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below which are already overburdened." Reliance is also placed on Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR 236), relevant portion whereof is reproduced as under: "9.....Obviously, an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence." Reliance is also placed on cases cited as Abdul Razzaq v. Muhammad Islam and 3 others (1999 SCMR 1714) and Muhammad Latif v. Member, Board of Revenue and others (1986 CLC 1052). As such the learned trial court committed error of law and facts while deciding application under Section 12(2), C.P.C., without framing issues and recording evidence which has rightly been interfered by the learned revisional court, who remanded the matter to the learned trial Court to decide the aforesaid petition after framing of the issues and recording the evidence of the parties.

8. Further, learned Revisional Court through the impugned order dated 13.09.2014 has merely remanded the matter to the trial court and has not finally decided the issue on merits as such against the remand order ordinarily writ petition is not maintainable. Reliance is placed on the case titled as Muhammad Ryas Khan v. Muhammad and others (1986 SCMR 251). The Hon'ble Supreme Court of Pakistan in a case titled as Allah Ditta and others v. Member (Judicial), Board of Revenue and others (2018 SCMR 1177) wherein it is held as under:- "

6. Order of remand is not a final order and simply sends the matter for re-examination for the second time. It does not finally determine the claim or the rights of the parties. The forum to which the case is sent for fresh decision is free to re-examine the case and pass a fresh judgment. Against any such subsequent decision or judgment, alternate remedy is available to the parties. Further, Board of Revenue is the highest court of appeal and revision in revenue cases and is a controlling authority in all matters connected with the administration of land, collection of land revenue, preparation of land record and other matters (See section 5 of the Board of Revenue Act, 1957). In this background the courts after having judicially examined the remand order passed by the Board of Revenue have expressed reluctance to interfere and for these reasons have maintained that order of remand would not be amenable to writ jurisdiction (see Ramzan v. Rehabilitation Commissioner (Legal) Sarvodha (PLD 1963 Lahorc 461), Kaniz Fatima v. Board of Revenue (PLD 1973 Lahore 495) and Ghulam Rasool v. Khudai Dad (PLD 1986 Quetta 130). This is not an absolute rule. An order of remand that is facially perverse or without jurisdiction or otherwise void can be interfered with, like any other order (see Ghulam Rasool (supra)). The constitutional power to judicially review an order of remand passed by the Board of Revenue is not in any manner curtailed or abridged by the precedents cited above. Infact, the principle that emerges from the wisdom of the precedents is that, for reasons narrated above, the constitutional court must approach and examine a remand order passed by the Board of Revenue with care and circumspection, so as to sparingly interfere with it, unless of course, the remand order is facially perverse, without jurisdiction or otherwise void. Amenability of writ jurisdiction against a remand order is in this context and subject to above conditions." Reliance can also be placed on the cases titled as Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and another (PLD 1963 (W.P.) Lahore 461), Akbar Ali and 18 others v. Mukhtar Ahmad and 14 others (2007 CLC 768) and Ghulam Ahmad v. Member Board of Revenue, Punjab, Lahore and others (2010 CLC 1921).

9. Besides above, there is another significant aspect of the matter that Abdullah respondent No.3 claim his ownership on the basis of Provisional Transfer Order issued by Settlement Department but neither the said document of allotment i.e. PTO nor the Permanent Transfer Deed are produced before the learned trial court, withholding of which brings the very ownership of respondent No.3 under question thus the Province of the Punjab through Chief Settlement Commissioner / Member (Residual Properties) / Notified Officer. Punjab who is the custodian of the evacuee property is a necessary party to the lis and thus be impleaded as necessary party, thereafter the learned trial court shall decide the application under section 12(2), C.P.C. and title of respondent No.3 as well as the controversy of the agreements after framing issues and recording of evidence of the respective parties.

10. In view of above observation, this writ petition is dismissed being not maintainable. However, the learned trial court is directed to decide the application under section 12(2), C.P.C., after determination of title of the suit property / Shop No.S-34R-4/5 situated at 1-Cooper Road, Lahore strictly in accordance with law after impleading Province of the Punjab through Chief Settlement Commissioner / Member (Residual Properties) / Notified Officer, Punjab as party in the lis and procuring its presentation. ZH/Z-26/L Petition dismissed.