2025 PLP 449 (CLC)

S M ATTIQUE SHAH, J.

Through present petition, the petitioners have called in question the judgment and; order of the learned Revisional Court dated 02.12.2021, whereby, while allowing the revision of the respondents, set aside the judgment and; order of the learned trial court dated 29.02.2020 and; remanded their application filed under section 12(2) C.P.C. to the learned trial court for its decision on merits, after framing proper issues and; recording evidence of the parties.

2. I have heard the learned counsel for the parties and; also gone through the entire record with their valuable assistance.

3. Basically, the respondents have questioned the validity of the consent decree dated 15.05.1975 passed in Civil Suit No .306/1 titled "Siyal Khan v. Mohibullah and; Habibullah" on the ground that it was obtained on the basis of fraud; misrepresentation and; concealment of facts through a petition under section 12(2) C.P.C. Record reflects that predecessor of the petitioners had purchased landed property measuring 25 jerbs from the predecessors of the respondents against the sale consideration of Rs.3000/- per jerb way back in the year 1970-71, however, subsequently, the latter refused to mutate the said property in their names, which prompted the predecessor of petitioners to file a suit for declaration and; correction of revenue record against the predecessors of the respondents before the learned Senior Civil Judge, Peshawar, which was contested by them through filing their written statement. During the pendency of the suit, both the parties entered into a compromise with the intervention of the elders of the locality, whereby, the predecessors in interest of the respondents had admitted the claim of the predecessor in interest of the petitioners and; pursuant thereto, the suit was decreed in favour of predecessor of the petitioners vide judgment and; decree dated 15.05.1975. Subsequently, in the light of the aforesaid consent decree, the property in question was transferred in the name of predecessor of the petitioners through mutation No.663, dated 27.11.1975 and; thus the property in question was fully incorporated in the revenue record in the lifetime of the predecessors of the respondents. Undoubtedly neither the ibid consent judgment and; decree nor the mutation and; the subsequent entries pursuant thereto in the revenue record were challenged by the predecessors of the respondents in their lifetime, hence the same had attained finality in the attending circumstances of the case. It is settled law that once consent judgment/decree/order, as the case may be has been passed by a competent court of law, then the parties cannot resile from it without any cogent and; valid reasons, which is certainly not the case here.

4. Besides, consent decree operates as estoppel by judgment, the matter of such estoppel had been threadbarely discussed in the case reported as titled Sailendra Narayan v. State of Orissa AIR 1956 SC 346, wherein, it has been held that a compromise decree creates an estoppel by judgment and; as such, the same operates an effective estoppel between the parties as good as a judgment and; decree passed by a competent court of jurisdiction in a contested case after due exercise of its mind.

5. So far as the contention of the respondents qua decision of their 12(2) petition after framing of issues and; recording of evidence is concerned, suffice it to say that it is long settled 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 the very purpose and; object of section 12(2) C.P.C., which is to avoid, protracted and; time consuming litigation in order 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. Warriach Zarai Corporation v. F.M.C. United (Pvt) Ltd 2006 SCMR 531.

6. It is also settled that when a person raises the ground of fraud or concealment to allege his claim or defend his stance, the same has to be specifically pleaded with clear particulars, which is certainly not the case here. Basher Ahmad through LRs and others v. Muhammad Hussain and others PLD 2109 Supreme Court

504. In the present case, the respondents have filed the application under section 12(2) C.P.C., after more than four long decades and; that too, without mentioning any specific date of knowledge therein, which is not maintainable being barred by law in terms of Article 181 of the Limitation Act, 1908.

7. Such legal and factual aspect of the case was properly appreciated by the learned trial court while dismissing the application under section 12(2) C.P.C. of the respondents through a well reasoned judgment and; order dated 29.02.2020, however, the learned revisional court has wrongly reversed the said findings through the impugned judgment and; order dated 02.12.2012 and; consequently, remitted back the matter to the learned trial court for its decision on merits. Such findings of the learned appeal court suffer from illegality and; material irregularity, hence warrant interference of this court while exercising its writ jurisdiction in the given circumstances of the case.

8. Such being the position, this writ petition is allowed, the impugned judgment and; order of the learned Revisional Court dated 02.12.2021 is set aside and; consequently, the judgment and; order of the learned trial court dated 29.02.2020 is restored to its original position, whereby the application under section 12(2) C.P.C. of the respondents was dismissed being barred by time. No order as to costs. SA/174/P Petition allowed.