2008 PLP 119 (YLR)

SYED ZAHID HUSSAIN, J.

Tanvir Ahmed Khan respondent No.1 had instituted the declaratory suit with consequential relief against Qazi Abdul Hakeem and six others. The suit was dismissed by the trial Court on 11-4-1993. On appeal of the respondent/plaintiff, the judgment of the trial Court was reversed and it was found by the appellate Court that respondent No.1 was "owner of land measuring 9 Marlas bearing Khasra No.452 and also is entitled to its possession as prayed for". This was vide judgment dated 3-10-2002. The petitioner though was not party to the suit, filed Civil Revision No.406/2003, which was withdrawn on 4-4-2005 to avail proper remedy under the law. She then filed application under section 12(2) of the Code of Civil Procedure, 1908 before the appellate Court, which was dismissed by the learned Additional District Judge, Lahore on 16-12-2006. It has now been assailed through the present revision petition.

2. It is contended by the learned counsel that the judgment of the appellate Court was result of fraud, misrepresentation and collusion inasmuch as that the petitioner was the ultimate vendee from. Qazi Abdul Hakeem who had legal title and that Rehmat Ali respondent No.4 from whom Tanvir Ahmed Khan respondent No.1 derives the title, had no right in the suit property. It is contended that the petitioner was the bona fide purchaser of the property for valuable consideration of which she cannot be deprived of and that the Court below has no-suited her without affording opportunity of producing evidence in the matter.

3. The learned counsel for respondent No.1 supports the order passed by the learned Additional District Judge who contends that in view of the proved facts and circumstances the application has rightly been dismissed, which neither required the framing of issues nor recording of evidence therein.

4. I had sent for the record of the case, which has been perused.

5. The case of respondent No.1/plaintiff was that being vendee from Rehmat Ali (respondent No.4) he was owner of suit property 9 Marlas comprising Khasra No.452. It has been noted by the learned Additional District Judge that the petitioner is wife of Abdul Hakeem one of the respondent/defendant and Abdul Waheed Khan another respondent/defendant was real brother of Abdul Hakeem. The said Abdul Waheed had filed petition under section 12(2) of the Code of Civil Procedure, 1908 qua the same judgment of the appellate Court dated 3-10-2002 through Farooq Ahmed, which had been dismissed on 18-9-2004. Incidentally the same Farooq Ahmed had acted as attorney for the petitioner in filing Civil Revision No.406/2003 and even application under section 12(2) of the Code of Civil Procedure, 1908, which has given rise to the present revision petition, has been filed through Farooq Ahmed. It shows close relationship and nexus inter-se the petitioner and the defendants in the suit. There cannot thus be any possibility of collusion so far as respondent No.1/plaintiff and the husband of the petitioner or her brother in law is concerned. Rather it goes to show to the contrary. The learned Additional District Judge on taking into consideration the established facts has noted that the "case of Tanveer Ahmad Khan is that he is owner of plot measuring 9 Marlas on the basis of registered sale deed in Khasra No.452, the contesting defendants examined Abdul Waheed Dogar in the learned trial Court as D.W.1 who stated in chief examination that he is owner of Khasra No.453 and he knows nothing about Khasra No.452 and defendants Nos.4 to 6 have also no concern with Khasra No.453 in which he has been residing. Abdul Hakim, defendants No.4, husband of Mst. Shahida Hakim appeared as D.W.2 and in his chief examination he stated that he never got possession of Khasra No.452 owned by the plaintiff. He has been residing in Khasra No.453 which is owned by his wife and she has 10 Marlas land in Khasra No.453 and residential house has been constructed therein. It has further been stated that neither he ever got possession of Khasra No.452 nor Khasra No.452 is in his possession. In his cross-examination, he again deposed that he is owner of Khasra No.453 and he has no concern with Khasra No.452." The plea of the petitioner laying claim to the suit property is beyond comprehension in view of the stance of her husband and her brother in law. Both of them had been party to the suit and had appeared as witness. The learned Additional District Judge has thus rightly reached the conclusion that there was nothing convincing on the record to support her allegation of fraud, misrepresentation or collusion in the matter.

6. So far as the grievance about non-framing of issues and non-availability of opportunity to produce evidence is concerned, suffice it to observe that there is no rule of absolute nature that in all applications under section 12(2) of the Code of Civil Procedure, 1908 the Court must necessarily frame issues and record evidence. In Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296) it was observed that "while dealing with the allegations, under section 12(2) C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held in Amiran Bibi v. Muhammad Ramzan (1999 SCMR 1334). In the instant case, we have gone through the application under section 12(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner under section 12(2), C.P.C., was liable to be dismissed without formulating issues and recording evidence of parties". Similar was the view taken in Mst. Nasira Khatoon and another v. Mst. Aisha Bibi and 12 others (2003 SCMR 1050). In view of the above, I find no valid justification to interference with the order impugned. The petition is dismissed accordingly. F.B./S-154/L Petition dismissed.