1997 PLP 1774 (CLC)

"The plaintiffs have failed to point out any defect in the report and partiality of the commission. Oral assertions without any cogent evidence or proof cannot be considered at this moment because the Commission went at the spot, he recorded statements of Mst. Umm‑e Kalsoom, Zahida Bashir, Mussarat Bashir, Zahid Bashir, Rahat Nasim etc. The plaintiffs have not produced any documentary evidence before the Commission. 12. 'It appears that after the petitioner's application under Order 13, Rule 2, C.P.C. and the objection petition was rejected by the learned trial Court, petition under section 12(2), C.P.C. was filed by the petitioner on 2‑1‑1995. Excepting respondent No.7, Mst. Zahida Bashir, all other respondents opposed and contested this application which was ultimately rejected by the learned trial Court through the impugned order dated 6‑6‑1995 without framing issues and recording the evidence. ' 13. 1 summoned the original record pertaining to the main suit and the application under section 12(2), C.P.C. and examined the same. The record reveals that originally the suit for partition was filed by Mst. Zahida Bashir alone on 19‑7‑1993 wherein Mst. Umm‑e‑Kalsoom, the present petitioner, was impleaded as defendant No. l ‑ Summonses we e issued to the defenda nts for their appearance on 21‑7‑1993 on which date Mst. Umm‑e‑Kalsoom appeared in person alongwith the plaintiff and also signed the order‑sheet. Since the summonses were not served upon the remaining defendants, fresh Summonses were issued to them. On 2‑3‑1994 the present petitioner, Mst. Zahida Bashir, plaintiff, Zahid Bashir and Mst. Rahat Shamim, defendants appeared in person. The same day i.e. 2‑3‑1994, the statement of Mst.. Umm‑e‑Kalsoom as P.W.2 was recorded by the learned trial Court and thereafter on the oral request'of the defendants, the present petitioner was transposed as plaintiff No.2. This order was passed in the presence of the petitioner in view of the statement made by her in support of the plaint. Mst. Umm‑e‑Kalsoom again appeared in person on 9‑6‑1994 and for the second time got her statement recorded as P.W.3. In both these statements she admitted having executed deed of will (Exh.P.l) in favour of Mst. Zahida Bashir, plaintiff. In her statement dated 9‑6‑1994, she stated as follows:‑‑ The Local Commissioner also recorded the statement of Mst. Untm‑e‑Kalsoom on 2‑8‑1994 which was placed on record of the trial Court by the Local Commissioner alongwith other evidence. In this statement also she affirmed execution of the will and also stated that:‑‑ Both the statements dated 9‑6‑1994 and 2‑8‑1994 were also signed by Mst Umm‑e‑Kalsoom.

14. In support of the contention that the learned trial Court could not dismiss the application under section 12(2), C.P.C. without framing issues and recording evidence, learned counsel for the petitioner relied on "Ghulam Muhammad v. M. Ahmad Khan etc." (1993 SCMR 662), Sunni View Cooperative Housing Society v. Irshad Hussain etc." (1993 CLC 2336), "Muhammad Chiragh etc. v. Muhammad Fazil" (1991 MLD 172) and "Muhammad Abdullah v. Mushtaq Ahmad" (1992 ALD 513). Learned counsel for the petitioner submitted that the factual controversy in respect of the gift in favour of the petitioner required framing of issues and recording of evidence and that as the same was not done by the learned trial Court, the impugned order dated 6‑6‑1995 is vitiated in the light of the aforesaid precedent cases.

15. On the contrary the learned counsel for respondents Nos.1 to 6 submitted that in the circumstances of the present case framing issuts and recording evidence was not warranted inasmuch as the claim of exclusive ownership by the petitioner on the basis of the alleged gift was neither bona fide nor supported by any legal evidence. Reliance in this connection is placed on "Iqbal Sultan v. Miss Chand Sultan etc." (1990 CLC 366) and "Rana Muhammad Sarwar v. Additional District Judge, Sahiwal etc." (1993 CLC 1336).

16. In both the precedent cases cited by the learned counsel for the petitioner i.e. Sunni View Cooperative. Housing Society and Muhammad Abdullah supra, a learned Single Judge of this Court observed that the application under section 12(2), C.P.C. ought to be disposed of after framing issues and recording evidence. However, in these two cases it is not held that in all circumstances f: timing of issues and recording of evidence is necessary.

17. In the main suit the present petitioner .did not plead the factum of gift and consequential exclusive owtiership by her. In fact she did not file written statement before her transposition as plaintiff nor did she object to the suit, On the contrary on both occasions when she appeared as a witness and made statements before the trial Court on 2‑3‑1994 and 9‑6‑1994, she admitted that all the .parties were entitled to the legal shares in the properties of late Bashir Ahmad Khan, their predecessor‑in‑interest and admitted having executed will (Exh.P.l) in favour of Mst. Zahid4 Bashir. In the will also the present petitioner has admitted that she alongwith the other parties to the suit have the shares in the suit properties as heirs of late Bashir Ahmad Khan and that she of her own free will had bequeathed her share in favour of her . daughter, Mst. Zahida Bashir.

18. As observed above the objection petition against the report of the Local Commissioner was jointly filed by the prescnt petitioner and Mst. Zahida Bashir, respondent No.7 through Mr. Raz Anwar, Advocate on 25‑9‑1994 pleading for the first time the factum of gift made in favour of the petitioner 'by her late husband. Alongwith this objection petition the list of reliance under Order 7, Rule 14, C.P.C. was filed, wherein, in column No.2 it was stated that gift deeds executed on 12‑2‑1963 and 10‑4‑1971 were in her possession. Subsequently when the application under section 12(2), C.P.C. was instituted none of the gift deeds or any document was annexed with the same. However, in paragraph No.4 of the application it was stated that:‑‑ "The petitioner acquiring information about the alleged sealing of the property, moved an application for placing on record copies of a gift deed and Nikahnama. By virtue of the gift deed, the two properties namely: (i)‑S‑53‑R‑7, Mission Road, Lahore existing on Khasra No.6976 to 6980 and 6982 to 6985, in the Revenue Estate of Qila Gujjar Singh, Lahore; and (ii) property No.S‑31‑R‑146, McLeod Road, sLahore were transferred in favour of the petitioner, by late Bashir Ahmad Khan, during his lifetime, by way of a gift." it may be mentioned that the application referred to in paragraph No.4 of this application was submitted in the main suit under Order 13, Rule 2, C.P.C. in which the relief claimed was as follows:‑‑

19. In the application under section 12(2), C.P.C it was stated that:‑‑ "The said properties had been validly transferred by the deceased late Bashir Ahmad Khan, during his lifetime, by way of gift, in favour of the petitioner which fact was duly acknowledged, confirmed declared and admitted in the gift‑deed dated 12‑2‑1963." It was further stated therein that:‑‑ "The gift‑deed dated 12‑2‑1963 is more than 30 years old document, which is presumed to be genuine and correct under the provisions of Qanun‑.e‑Shahadat and the genuineness thereof cannot be questioned or disputed, at this stage, on any imaginary or concocted plea... Consequently neither the suit was maintainable, nor the learned Court had any jurisdiction to take cognizance of the properties by assuming the same as part of the estate of the deceased. In the given circumstances, the decree has been obtained by fraud and concealment of facts. "

20. In this regard it is pertinent to point out that in the objection petition, reliance was placed on two gift deeds which were statedly executed by late Bashir Ahmad Khan in favour of the petitioner, his wife on 12‑2‑1963 and 10‑4‑1971. In the objection petition the petitioner and respondent No.7 stated as follows:‑‑

21. Copy of Nikahnama was also placed on record which is shown to have been executed on 22‑5‑1942 when the Nikah between the petitioner and her late husband was performed. This Nikahnama is silent with regard to the immovable properties, the subject matter of the present litigation, therefore, the averments made in the objection petition that at the time of Nikah these properties were transferred by way of gift in favour of the petitioner, is not correct. The two gift deeds statedly executed on 12‑2‑1963 and 10‑4‑1971 contradict each other. If the gift was already made on 12‑2‑1963 in favour of the present petitioner, there was no necessity of gifting the same property to the petitioner through the second gift deed dated 10‑4‑1971. In the second gift deed, it is reiterated that:‑‑ In this document there is no mention of previous gift made on 12‑2‑1963 in favour of the petitioner.

22. Learned counsel for the petitioner also argued that gift‑deed dated 12‑2‑1963 being an old document of more than 30 years is presumed to be genuine and cannot be questioned at this stage. Article 100 of the Qanun‑e Shahadat, 1984 provides that if a document which is proved to be 30 years old, is produced from the proper custody the Court may presume that the document was duly executed and attested by the person by whom it purports so executed. This presumption is never absolute but is rebuttal. The gift deeds dated 12‑2‑1963 and 10‑4‑1971 are not registered documents nor properly stamped. The gift‑deed dated 12‑2‑1963 is written on a stamp paper of Rs.7.50, therefore, this document itself does not create. title and transfer the property in dispute in favour of the petitioner.even if this is presumed to have been executed by late Bashir Ahmad Khan, in view of section 17(i)(a) of the Registration Act which makes the registration of an instrument of gift of immovable property compulsory and in terms of section 49 unregistered document does not "operate to create, declare, assign, limit or extinguish, whether in present or in future, C any right, title or interest, whether vested or contingent, to or in immovable property..." Besides, the alleged gift‑deed relates to valuable property, therefore, long silence of the petitioner, at least, since the death of her husband which occurred in the year 1982 up to the time when the objection petition was filed in the Court on 25‑9‑1994, is not explained. The petitioner alongwith his daughters and son prosecuted the previous suit which resulted in the passing of the decree in their favour on 27‑11‑1989 declaring all of them to be heirs of Bashir Ahmad Khan and . entitled to inherit property left by him. In the subsequent suit for the partition of the suit properties she participated in the proceedings initially as defendant and, subsequently., as a co‑plaintiff after transposition as such till the time the preliminary decree was passed by the learned trial Court on 5‑7‑1994. Therefore, presumption could not be raised in favour of the validity of the gift‑deed in question.

23. It is not in each and every case that whenever application under section 12(2), C.P.C. is submitted the Court is bound to frame issues and record the evidence of the parties and thereafter decide the same. There is no such inflexible rule which the Court is bound to follow for the disposal of such application. It alwa depends on the facts and circumstances of each case. Where the application under section 12(2), C.P.C. does not disclose a prima facie case and reasonable grounds do not exist for setting aside the decree, the Court may not frame issues and record the evidence of the parties. again when the fraud and misrepresentation does not appear to have been played by the parties in obtaining a decree, the Court may not record the evidence. The Court p may also not frame issues and record evidence if it is of the opinion that such application is mala fide and is an effort to put to re‑trial the same issue which has been previously decided and to prolong the litigation. I am fortified by the following observations of the Hon'ble Supreme Court in "Ghulam Muhammad v. M. Ahmad Khan etc. " (1993 SCMR 662):‑‑ "Seemingly, two‑fold purpose is sought to be achieved by the amending provisions; firstly from jurisprudential point of view it is the obligation of the Court on whom the fraud is practised to undo the fraud. Such application lies before the Court passing the final judgment, decree or order. Since on appeal or revision, against the judgment, decree or'order, obtained by fraud, the matter is re‑opened before the Appellateor Revisional forum, as the case may be, the application has to be filed b ore the higher Court seized of such matter. Secondly by conferment of the remedy through a simple application the litigating party is to a large extent, saved from the hardship and cumbersome procedureinvolved in prosecuting a suit and the delay in the final decision thereof. It is correct that the determination of allegations of fraud and misrepresentation, usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation 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 case so demand." In the application under section 12(2), C.P.C. as well as in this petition, the only important question to be determined is whether there was a gift transferring suit property in favour of the petitioner by her husband. The learned trial Court had come to the conclusion that there was no such gift in existence and has observed that:‑‑ "The statement of Umm‑e‑Kalsoom petitioner as P.W.2 was recorded on 2‑3‑1994. In her statement the petitioner accepted the registration of will Exh.P‑1 in favour of Mst. Zahida Bashir respondent No.7. Even the original registered Will deed Exh.P‑1 is on record. In the Will deed Exh.P‑1 and also in her statement dated 2‑3‑1994 Mst. Umm‑e Kalsoom petitioner did not claim that there is a gift deed in her favour. In the registered Will. deed Exh.P‑1 the petitioner has admitted Mst. Zahida Bashir etc. and other legal heirs to be the legal heirs of late Bashir Ahmad Khan. She also admitted that a decree in this behalf was passed by Sh. Ahmad Farooq learned Civil Judge 1st Class, on 27‑11‑1989. In the Will deed the petitioner transferred her rights by way of a Will in favour of Mst. Zahida Bashir. Similar is the position in her statement dated 2‑3‑1994. Earlier the parties filed a suit regarding properties as involved in the present suit seeking a declaration that they are legal heirs of late Bashir Ahmad Khan. Their suit was accordingly decreed on 27‑11‑1989 with the observation that from the ex parte evidence, it is proved that the plaintiffs are the legal heirs of Bashir Ahmad Khan deceased. " It is further observed that:‑‑ "The previous conduct of the petitioner shows that neither there was any such gift deed in existence nor the petitioner claimed to be the full owner of the properties in dispute because had the petitioners been the full owner of the properties in dispute, there was no need for her to file earlier suit for declaration seeking a declaration that they are legal heirs of the deceased. I feel there is no need to frame issues in the matter as it is also held by the learned superior Courts that the proceedings under the application under section 12(2), C.P.C. should be disposed of at the earliest when the petitioner has no prima facie case in her favour."

25. The learned trial Court also opined that the application under section 12(2), C.P.C. was mala fide and collusive. Reference in this behalf is made to the following passage of the impugned judgment:‑‑ "She did not claim her rights on the basis of gift‑deed in question. When the Court was going to pass orders for the auction of the suit property, it appears that the petitioner with the collusion of respondent No.7 Mst. Zahida Bashir filed the present application under section 12(2) just to prolong the matter as the petitioner is occupying a portion of the. suit property. Moreover she is receiving rent from the tenants and using the same. In this way she is trying to prolong the matter just to usurp the rent and rights of the respondents. From the record it also appears that in fact Mst. Zahida Bashir and Umm‑e Kalsoom are one person and for the sake of this petition they have divided themselves and filed the present application."

26. Learned counsel for the petitioner also argued that the petitioner's transposition was not warranted as she had neither applied nor authorised Mr. Riaz Anwar, Advocate for that purpose. This plea was raised after the passing of preliminary decree and prior io that petitioner had appeared in person and got her statement recorded twice. The order of transposition was passed in her: presence when she was accompanied by respondent. No.7 and Mr. Riaz Anwar, who represented her before and after the preliminary decree, under Order 1, I Rule 10, C.P.C. and was done with the consent of the parties on their oral request. 27 For what has been stated above, I am of the considered view that there E was no necessity of framing issues and recording evidence on the petitioner's application under section 12(2), C.P.C. in the circumstances of the present case. Thus the impugned order dated 6‑6‑1995 does not appear to suffer from any legal infirmity and does not call for interference by this Court. This Civil Revision Petition is, therefore, dismissed without any order as to costs. A.A./U‑7/L Revision dismissed