2024 PLP 1354 (MLD)

Ali Baig, C.J.

Through the instant writ petition filed under Article 86(2) of the Government of Gilgit Baltistan Order 2018, the petitioner has called in question the validity of the impugned judgment/order dated 25.11.2022 passed by the learned Addl. District Judge, Skardu in Civil Revision No. 07/2022, whereby the learned Addl. District Judge Skardu has dismissed the civil revision petition of the present petitioner by maintaining the order/judgment dated 23.08.2022 passed by the learned Civil Judge 1st Class Roundu camp at Skardu.

2. Brief facts of the case leading to filing of the instant writ petition are that two execution petitions bearing Execution Petition No. 01/2021 titled "Fazal v. Lashkar" and Execution Petition No. 05/2021 titled "Hamza Ali v. Fazal" were pending before the Executing Court Roundu. During the execution proceedings, the parties of both execution petitions had filed a written compromise deed dated 27.05.2022 effected between the parties outside of the Court. The learned Executing Court Roundu on the request of both the parties recorded their statements and disposed both the aforesaid execution petitions in the light of compromise deed dated 27.05.2022, vide order dated 02.06.2022. Thereafter, on 16.08.2022, the present petitioner had filed an application under section 12(2) C.P.C.0 before the learned Civil Judge 1st Class Roundu for setting aside the order dated 02.06.2022 passed by the Executing Court Roundu in Execution Petition Nos. 01/2021 and 05/2021 as well as the compromise deed dated 27th May, 2022.

3. The learned trial Court after hearing preliminary arguments of the learned counsel for the present petitioner on the application under section 12(2) C.P.C., had dismissed the aforesaid application being non-maintainable, vide judgment/order dated 23.08.2022 passed in C.M No. 20/2022.

4. Feeling aggrieved and dissatisfied with the order/judgment of the learned Civil Judge 1st Class Roundu, the present petitioner had filed a civil revision petition before the learned Addl. District Judge, Skardu. The learned Addl. District Judge, Skardu, after hearing arguments on behalf of both the parties, had also dismissed the civil revision petition of the present petitioner being devoid of merit and upheld the judgment/order of the learned trial Court, vide impugned judgment/order dated 25.11.2022.

5. Feeling aggrieved and dissatisfied with the impugned judgment dated 25.11.2022 of the learned Addl. District Judge, Skardu, the petitioner has filed the instant writ petition before this Court.

6. The learned counsel appearing on behalf of the petitioner argued that the learned trial Court has passed the order dated 23.08.2022 without hearing the stance of the respondents, as such the learned trial Court has passed by impugned order dated 23.08.2022 in a hasty manner which is liable to be set aside. The learned counsel for the petitioner further argued that the impugned judgment/order passed by the learned Addl. District Judge, Skardu is contrary to law and facts on the record of the case, as such the impugned judgment/order is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the petitioner is an illiterate person and the respondents have taken undue benefit from the illiteracy of the petitioner and learned Courts below have ignored this fact as such the judgments/orders of both the Courts below are liable to be set aside. The learned counsel for the petitioner further argued that the learned Courts below have misconceived the wisdom of section 12(2) C.P.C. and wrongly passed the impugned judgments/orders which are not sustainable in the eye of law and the same are liable to be set aside. The learned counsel for the petitioner further argued that the parties have effected compromise in Execution Petion No. 05/2021 titled "Hamza Ali v. Fazal" whereas the learned Executing Court has wrongly disposed the Execution Petition o No.01/2021 titled "Fazal v. Lashkar", hence the impugned judgments/orders are contrary to actual facts, hence the same are liable to be set aside. The learned counsel for the petitioner further argued that if the impugned judgments/orders are not set aside, the petitioner will suffer irreparable loss. In support of their arguments, the learned counsel for the petitioner have relied upon judgments of superior Courts reported as 1984 SCMR 586, 2002 CLC 166, 2005 CLC 1704, 1957 PLD 983 and 1993 SCMR 662.

7. Conversely, the learned counsel for the contesting respondents controverted the arguments advanced by the learned counsel for the petitioner and supported the impugned judgments/orders passed by the learned Courts below by contending that the petitioner had effected compromise with the respondents on his own free will without any external influence, whereupon the learned Executing Court Roundu has disposed both the execution petitions in the light of compromise deed dated 27.05.2022. The learned counsel for the contesting respondents further contended that at the time of disposal of both the execution petitions, the present petitioner was present before the Executing Court Roundu along with his counsel as evident from the order dated 02.06.2023, hence presumption of truth is attached to the order of Court, as such the learned Courts below have taken into consideration the entire record and facts of the case and has rightly passed the impugned judgments/orders. The learned counsel for the contesting respondents further contended that the petitioner had also got recorded his statement in favour of compromise deed dated 27.05.2022 before Executing Court Roundu, as such the application of the petitioner under section 12(2) is not maintainable. The learned counsel for the contesting respondents further contended that the learned counsel for the petitioner has failed to point out any illegality or material irregularity in the impugned judgments/orders passed by the learned Courts below, hence the writ petition of the petitioner is liable to be dismissed.

8. I have heard the arguments advanced by the learned counsel for the parties at a considerable length and also gone through the record of the case with their able assistance.

9. First of all I would like to reproduce the relevant provision section 12(2) C.P.C. for ease and convenience as under: "12(2).

Where a person challenges the validity of a judgment, decree or or order on the plea of fraud, or misrepresentation or want of jurisdiction, he shall seek his remedy by making a application to the Court which passed the final judgment, decree or order and not by a separate suit" Bare reading of the afore reproduced provisions of C.P.C. reveals that application under section 12(2) C.P.C. can be filed on the following three grounds i.e. (1) Mis-representation; (2) Fraud and (3) Want of jurisdiction.

10. I have gone through the contents of the application filed by the present petitioner under section 12(2) C.P.C. in the trial Court and found that the petitioner has not categorically stated the fraud, misrepresentation or want of jurisdiction as required under section 12(2) C.P.C. in the said petition. Even otherwise, the petitioner namely Fazil Ali has effected compromise on his free will as his signature and signatures of his two sons namely Basharat Ali and Akbar Ali are appearing on the compromise deed effected on 27.05.2022. Moreover, the petitioner was present before the trial Court at the time of passing of order dated 02.06.2022 by the learned irial Court as evident from the record as such the learned trial /Executing Court has passed the impugned judgment/order by fulfilling of codal formalities of compromise.

11. The learned counsel for the petitioner mainly contended that the application of the petitioner filed under section 12(2) C.P.C. has been dismissed by the learned trial/Executing Court in a hasty manner without framing of issue and recording of evidence. In this connection it is observed that the trial Court is not bound to frame issues or to record evidence and application under section 12(2) C.P.C. can decide on the basis of material placed before it.

12. Moreover, writ under Article 199 of the Constitution of Islamic Republic of Pakistan applies only to the cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction by the Courts below. It cannot be invoked against the conclusion of law or facts which are result of irregular exercise of jurisdiction.

13. For the foregoing reasons and discussion, I have come to the conclusion that this writ petition filed against the dismissal order of application under section 12(2) C.P.C. is without any substance as neither the compromise nor the consent decree was based.on.fraud or misrepresentation, nor want of jurisdiction. Consequently, the consent decree/order passed by the learned trial Court did not warrant to be assailed under section 12(2) C.P.C. as the essential requirements/ingredients.necessary to invoke the jurisdiction of Court under section 12(2) C.P.C. are missing as such both the learned Courts below have not committed any material irregularity or illegality while dismissing the application of the petitioner filed under section 12(2) C.P.C.

14. For what has been discussed above, this writ petition being bereft of merit is hereby dismissed and the impugned judgment/order passed by the learned Addl. District Judge, Skardu is upheld. Parties are left to bear their own costs. File MQ/11/GB Petition disissed.