2022 PLP 167 (CLC)

RAHEEL KAMRAN, J.

Through this writ petition, the petitioner has challenged the judgment dated 14.10.2021 passed by the learned Additional District Judge, Rawalpindi whereby his civil revision filed against the order dated 14.12.2020 passed by the learned Civil Judge, Rawalpindi on his application under Section 12(2) of the Code of Civil Procedure (V of 1908) [hereinafter referred to as "Code"] has been dismissed.

2. Background facts of the case, briefly, are that respondents Nos.1 and 2 (hereinafter referred to as "respondents") instituted a suit for possession through specific performance of agreement dated 11.07.2009, permanent and mandatory injunction against the petitioner, respondent No.3, Military Estate Office, Rawalpindi and Sub-Registrar, Urban II, Rawalpindi which was decreed by the learned Civil Judge 1st Class, Rawalpindi vide judgment and decree dated 20.02.2014. Thereafter, the petitioner filed an application under Section 12(2) of the Code which was contested by the respondents. Learned trial court, after hearing arguments of learned counsel for the parties, dismissed the aforesaid application by order dated 14.12.2020. The petitioner preferred Civil Revision No.460/2021 against the same, which too was dismissed by the learned Additional District Judge through the impugned judgment.

3. Learned counsel for the petitioner states that the impugned judgment of the learned revisional court as well as the order passed by the learned civil court are unsustainable in law inasmuch as the judgment and decree dated 20.02.2014 was obtained by respondents Nos.1 and 2 by practicing fraud, misrepresentation and collusion with respondent No.4; that the learned Additional District Judge travelled beyond the procedure and passed the impugned judgment on the basis of documents which were never made part of the record during pendency of the suit, proceedings in the application under Section 12(2) of the Code or even during pendency of the revision petition; that the learned Civil Judge was required to frame issues and decide application under Section 12(2) of the Code on merits after recording of evidence, however, the said application was decided summarily in a slipshod manner without judicious application of mind and the learned revisional court failed to rectify such material irregularity.

4. Arguments heard. Record perused.

5. The relevant provisions of law i.e. Section 12 of the Code provide as follows: -

12. Bar to further suit. -(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies. (2). Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit. (3). For purposes of the disposal of an application under subsection (2), the Court may, in the interest of expeditious disposal, apply such fair procedure as the circumstances of the case warrant, and shall, unless, for reason to be recorded it directs otherwise, order any fact to be proved or disproved by affidavit.

6. Subsection (1) of Section 12 bars institution of a further suit in respect of any cause of action where a plaintiff is precluded by rules to do so in any court to which the Code applies. Section 2(18) of the Code defines "rules" to mean rules and forms contained in the Fist Schedule or made under Section 122 or Section 125 of the Code. Section 12(2) of the Code provides a remedy to challenge validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by making an application to the court which passed the final judgment, decree or order while barring institution of a separate suit for that purpose.

7. Prior to insertion of subsection (3) in Section 12 of the Code through Punjab Act No. XIV of 2018 dated 20.03.2018, no procedure was prescribed for the disposal of an application under Section 12(2) of the Code, however, in cases where the determination of allegations of fraud and misrepresentation involved investigation into the question of fact, inquiry was ordinarily held to adjudicate upon the matter by framing an issue and recording evidence while invoking the provision of Section 141 of the Code. It was, however, held in various judgments of the apex Court to be not mandatory to frame issues and record evidence for the disposal of an application under Section 12(2) of the Code as the court had to regulate its proceedings keeping in view nature of the allegations made in the application and adopt such mode as was in consonance with justice in the facts and circumstances of the case. It was further held that framing of issues in every case to examine merits of such application would frustrate the object of Section 12(2) of the Code which is to avoid protracted and time consuming litigation and to save the genuine decree holders from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts. Reliance in this regard is placed on the cases of Ghulam Muhammad v. Ahmed Khan (1993 SCMR 662); Amiran Bibi and others v. Muhammad Ramzan and others (1999 SCMR 1334); Ms. Amina Bibi v. Nasrullah and others (2000 SCMR 296); Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050) and Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531).

8. A perusal of Section 12(3) of the Code clearly indicates that: firstly, an application under Section 12(2) of the Code has been required by law to be disposed of expeditiously; secondly, for expeditious disposal of such an application, a discretion has been conferred upon the court to adopt such procedure as the circumstance of the case warrant; thirdly, the procedure to be adopted by the court must be fair in the circumstances of the case; fourthly, if proof etc. of any fact is required, it shall be proved or disproved by affidavit unless directed otherwise by the court; and lastly, reasons must be recorded in the order where the court directs any fact to be proved or disproved otherwise than by way of affidavit. It is thus manifest that the requirements of a regular trial vis- -vis framing of issues and recording of evidence have been generally dispensed with by the legislature in adjudication of applications under Section 12(2) of the Code and the court has been burdened with the responsibility to record reasons for resorting to such procedure in exceptional cases.

9. From perusal of the order passed by the learned Civil Jude, Rawalpindi dismissing application of the petitioner under Section 12(2) of the Code, it is manifest that the same has been decided on the basis of uncontroverted facts that respondents/decree-holders filed the execution petition on 30.05.2014 which was being contested by the petitioner, who appeared before the court on 28.11.2015 and got his statement recorded in the following terms: -

10. The learned Civil Judge dismissed the application of the petitioner under Section 12(2) of the Code for being barred by limitation and the learned revisional court equally relied upon the aforementioned statement of the petitioner to dismiss his civil revision.

11. Undeniably, the application in question was instituted by the petitioner on 27.03.2018 i.e. after insertion of subsection (3) in Section 12 of the Code which squarely applied in this case. Accordingly, the learned Civil Judge was required to expeditiously dispose of the application and, for that purpose, he was well within his authority to apply any procedure which was fair in the circumstances of the case. No issue was required to be framed and no evidence was required to be recorded in this case which has been decided on the basis of statement of the petitioner recorded by the learned executing court on 28.11.2015. While dismissing civil revision of the petitioner, the learned revisional court noted that the petitioner had earlier filed objections qua execution while alleging more or less the grounds taken by him in his application under Section 12(2) of the Code which were later on withdrawn while recording his aforementioned statement, therefore, his application was hit by the doctrine of estoppel.

12. When confronted with the aforementioned statement made by the petitioner on 28.11.2015, learned counsel for the petitioner was unable to controvert the fact that the said statement was made by the petitioner. He also failed to advance any argument on non-applicability of the rule of estoppel in this case. Reliance in this regard is placed on the case of Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad (PLD 2015 SC 2012); Ejaz Naseem v. Fariha Ahmed (2009 SCMR 848) and Mst. Sharif Bibi v. Syed Muhammad Nawaz Shah (2008 SCMR 1702).

13. Even otherwise, the application under Section 12(2) of the Code was filed by the petitioner on 27.03.2018 after expiry of the period of limitation prescribed under Article 181 of the Limitation Act, 1908 in terms whereof such an application could be filed within three years from the date when the right to apply accrued and such date would be the date of passing of the judgment and decree i.e. 20.02.2014. Reliance in this regard is placed on the judgment of the apex Court in the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050).

14. For the foregoing reasons, the petitioner has failed to make out a case of illegality or jurisdictional defect in the decisions impugned in the titled writ petition warranting interference of this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly, this writ petition is dismissed in limine being devoid of any merit. ZH/H-22/L Petition dismissed.