2003 PLP 1472 (CLC)

Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 rel. Ibad-ur-Rehman Lodhi for Petitioner Raja Muhammad Hanif Satti for Respondent No.

1. Nemo for Respondent No.2. Date of hearing: 29th April, 2003. On 6-11-1998 the respondent No. 1 filed a suit against the respondent No.2 for possession of a shop located in Islamabad Capital Territory, by ejectment. The suit was contested. The respondent No.2 failed to produce evidence despite opportunities. The evidence was closed and the suit was decreed by the learned trial Court on 12-4-2000. Against this judgment and decree both the said respondents filed first appeals, which were heard by the learned District Judge, Islamabad, who dismissed both the appeals on 29-5-2001. The respondent No.2 then filed Civil Revision No.357 of 2001 in this Court, which was dismissed on 21-6-2001.

2. On 8-7-2001 the petitioner filed an application under section 12(2), C.P.C. for setting aside of the said decree in the learned trial Court. This was dismissed on 29-9-2001. The petitioner on the one hand filed a revision against the said order dated 29-9-2001 and on the other filed a fresh application under section 12(2), C.P.C. in the Court of learned District Judge on 5-11-2001. The revision as well as the said application have been dismissed by the learned District Judge, Islamabad, on 11-6-2002.

3. Learned counsel for the petitioner contends with reference to the judgment in the case of Sub. Muhammad Hussain v. Mst. Shah Begum and others 1990 MLD 2100 that the subsequent application was filed in the proper forum. He then contends that the learned District Judge ought to have framed issues and given an opportunity to the petitioner to lead evidence in support of the contents of his application. Learned counsel for the respondent No. 1 on the other hand argues that the application has been dealt with and decided on its merits by the learned District Judge and that there was no necessity to frame issues in view of the judgment of the Honourable Supreme Court of Pakistan in the case of Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696.

4. I have gone through the copies of the records, appended with this civil revision, with the assistance of the learned counsel for the contesting parties. I have already narrated above the history of this litigation. It will be noted that the first application was filed within a matter of days of the dismissal of the civil revision filed by respondent No.2 by this Court. Be that as it may I find that the case set up in the said application under section 12(2), C.P.C. was that the petitioner and respondent No.2 entered into a partnership vide partnership deed dated 6-8-1992 on terms stated therein. Then there is a reference to a dispute between the petitioners on the one hand and respondent No.2 on the other in the year 1998 and as a result of the same the two respondents colluded together to procure the said ejectment decree in order to oust the petitioner. I may note here that it is in para. 8 of the application itself that the lease agreement was between the respondent No. 2 on the one hand and the respondent No. 1 on the other. Copy of the said partnership deed is available at pages 45 to 47 of this paper book. The stamp paper for this document was procured on 10-4-1993. The date of execution has not been mentioned. However, it is stated in the body of the document that the partnership has commenced w.e.f. 6-8-1992. Now it is in this document that the business is being done in the suit premises. It is in clause 3 of the said document that it will be respondent No.2 who shall deal with, inter alia, the matter of agreement regarding the shop. It is true that it has been provided in clause 5 that the rent will be paid from the joint account. However, the fact remains that it has not even been alleged that the petitioner in any way is privy to the lease agreement between the respondent No.1 and the respondent No.2. Needless to state that no collusion or fraud is made out on the face of the record. The respondent No.2 contested the ejectment suit. He filed a first appeal and also took the chance before this Court but failed. A few days thereafter the petitioner appeared on the scene with his application.

5. The Hon'ble Supreme Court in the case of Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 with reference to the cases of Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334 and Mrs. Amina Bibi through general attorney v. Nasrullah and others 2000 SCMR 296 has laid down that it is not in every case that a Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit. 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, the Court may in its discretion adopt any mode for its disposal.

6. Now in the present case, the said allegations made in the application could have been disposed of after examination of the said partnership deed and to my mind there was no necessity at all for any factual inquiry into the allegations made in the application in the over all instances of this case. The civil revision accordingly is dismissed leaving the parties to bear their own costs. M. H. /J-88/L Petition dismissed.