2010 PLP 528 (CLC)

CH. NAEEM MASOOD, J.

The instant civil revision is directed against the order dated 10-12-1995, passed by the learned Additional District Judge, Vehari, whereby the judgment and decree dated 30-6-1991 passed by the learned Senior Civil Judge, Vehari and concurred by the judgment and decree dated 20-4-1992, passed by the learned Additional District, Judge, Vehari were set aside and the case titled "Noor Muhammad and others v. Province of Punjab" was -sent back to the learned Senior Civil Judge, Vehari with the direction that he should implead the respondents as defendants in the suit and then to proceed with the case.

2. The brief facts giving rise to the present revision petition are that the petitioners filed a suit on 21-4-1990, before the learned Senior Civil Judge, Vehari for declaration that the petitioners are owners in possession of the property in dispute being successors-in-interest of Haji Ghazi and Pir Bakhsh son of Noor Muhammad. Only Government of the Punjab was arrayed as defendant. The learned trial Court after, taking the evidence decreed the suit vide judgment and decree dated 30-6-1991. The appeal filed by the Province of the Punjab was, however, dismissed on 20-4-1992. In the meantime, one Muhammad Siddique had also contested to become a party in the proceedings but he did not succeed. Anyhow, respondents Nos.1 to 33 filed an application under section 12(2), C.P.C., for the cancellation of judgment and decree dated 30-6-1991, passed by the learned trial Court and judgment and decree dated 20-4-1992, passed by the learned lower appellate Court in the Civil Suit No.159 of 1990 tilted "Noor Muhammad v. The Province of Punjab" on 14-5-1992. After framing the issues, the parties led their respective evidence before the learned Additional District Judge and the learned Additional District Judge vide his judgment dated 10-12-1995 set aside the judgment and decree dated 30-6-1991, passed by the learned trial Court and judgment and decree dated 20-4-1992, passed by the learned lower appellate Court and remanded the case to the learned Senior Civil Judge, Vehari with the direction that the respondents be impleaded as defendants in the suit and the proceedings be conducted afresh. The present revision petition has been filed against the order dated 10-12-1995.

3. The learned counsel for the petitioners vehemently contends that the respondents have not been able to disclose clearly the nature of fraud committed by the petitioners with them. It is further contended that the application under section 12(2), C.P.C., was maintainable only before the learned trial Court, as the learned trial Court had passed the first judgment and decree, which was confirmed by the learned lower appellate Court. It is also submitted that all the 'issues could not have been decided jointly. It is also contended that as Muhammad Siddique had earlier failed to become a party, therefore, principle of res judicata was applicable on the respondents. It is further submitted that one Mahmood/respondent No.4 had since died before filing the application and his legal representatives have not been brought on record, the petition was not maintainable.

4. On the other hand, the learned counsel for the respondents vehemently argues that the order of the learned lower appellate Court impugned in the present revision petition merits to be upheld.

5. In the light of the arguments, I have gone through the record.

6. I find that the learned Additional District Judge had properly appreciated the documents on the record. Exh.A/3 Jamabandi for the year 1973-74, Exh.A/4 Jamabandi for the year 1918-1919 and Exh.A/5 copy of the pedigree table have been minutely examined. It is established from Exh.A/4 that Muhammad Murad, the predecessor-in-interest of the respondents, was also owner with Ahmed Bakhsh and Muhammad Bakhsh the predecessor of the petitioner/plaintiffs. The petitioners committed fraud and misrepresentation by failing to implead the respondents as defendants in the suit along with Province of Punjab. Exh.P/6 of the original trial of the suit also demonstrated that Muhammad Murad was co-owner of the Khata. Exh.P/6 could also not be appreciated by the learned trial Court and the learned lower appellate Court. The petitioners were under boundened duty to implead the respondents in the suit, which they did not do, and thus, obtained a decree against only the Government of the Punjab without impleading the co-owners.

7. The other point urged by the learned counsel with regard to the joint disposal of the issue is hyper-technical. The learned Additional District Judge has correctly appraised the evidence and the disposal of the joint issues is not illegality, which is susceptible to be challenged in revisional jurisdiction. Even otherwise, the Honourable Supreme Court in case reported as 2006 SCMR 531 titled "Warraich Zarai Corporation v. FMC United (Pvt.) Limited" has observed as follows:- "S.12(2)

Application under section 12(2) C.P.C.

Not obligatory for Court to frame issues and record evidence in each case

Such application could be decided on basis of available evidence and relevant record

if considered sufficient by Court

Framing of issues and recording of evidence would depend on circumstances of each case, nature of alleged fraud and decree so obtained

Principles. Framing of issues and recording of evidence is not obligatory for Court to decide application under section 12(2), C.P.C., which can be rejected on the basis of available evidence and relevant record, it is the satisfaction of Court either to frame issues, record evidence or, decide such application as may be deemed fit and proper after considering the circumstances of each case. No yardstick can be fixed for adjudication of such application."

8. The next forceful argument of the learned counsel for the petitioner that the application under section 12(2), C.P.C., could not be filed before the learned Additional District Judge, as the learned Additional District Judge had merely concurred the judgment of the learned trial Court, is also misconceived. The application under section 12(2), C.P.C., had rightly been filed before the learned Additional District Judge as the judgment and decree of the learned trial Court had merged in the judgment and decree of the learned Additional District Judge. Even otherwise, this revision petition was filed in 1996 and is pending in this Court for the last 13 years. To remand the case to the learned trial Court, to try afresh the application under section 12(2), C.P.C., on the ground that the final order was passed by the learned trial Court the same having been affirmed by the learned Additional District Judge in appeal would tantamount to travesty of justice. It was, a case of re-trial by impleading the respondents as defendants, even though the matter would have been agitated before the learned trial Court. The interest of justice and fairplay does demand that the trial should expeditiously be started. It is also in the interest of the petitioners, who are plaintiffs in the suit.

9. The upshot of the above discussion is that this revision petition is dismissed. The impugned order dated 10-12-1995 passed by the learned Additional District Judge, Vehari is upheld and the learned trial Court is directed to expedite the matter in the interest of the parties, keeping in view the fact that the civil suit was filed on 21-4-1990. Parties to bear their own expenses. H.B.T./N-92/L Petition dismissed.