2010 PLP 38 (YLR)

IJAZ UL AHSAN, J.

This petition is directed against order dated 6-6-2008 passed by the learned Civil Judge, Okara, and judgment dated 30-6-2009, passed by Additional District Judge, Okara.

2. Briefly stated, the facts of the case are that the petitioner filed a suit for partition on 12-2-2002. The petitioner/respondent No.2 was allegedly served, who filed a written statement. Consequently issues were framed and after recording of evidence the learned trial Court passed a preliminary decree on 30-1-2006. Later, a final decree was passed on 28-6-2006. At this stage an application under section 12(2) C.P.C. was filed on behalf of respondent No.2 on 4-9-2006. The assertions made in support of the application were that the respondent neither engaged a lawyer nor did he sign a power of attorney or the written statement. After conducting a preliminary inquiry the learned Civil Judge framed issues. Further, he proceeded to suspend operation of the judgment and decree dated 28-6-2006.

3. Aggrieved of the aforesaid order the petitioner filed an appeal before the Additional District Judge, Okara. The said appeal was dismissed vide order dated 30-6-2009.

4. The two main points argued by the learned counsel for the petitioner before me are that in the first place the order passed by the learned trial Court was a non-speaking order insofar as no reasons were recorded for framing of issues or suspension of the judgment and decree. The learned counsel further argued that in the application under section 12(2) C.P.C, the respondent had himself admitted that he had been duly served and that his signatures on the certificate of service and the power of attorney did not match. On the basis of the aforesaid assertions the learned counsel submits that the learned trial as well as the appellate Court have committed material irregularity in ignoring the aforesaid points which were duly raised, but not considered.

5. From perusal of the order of the learned trial Court it is noticed that the trial Court framed as many as eight issues relating to the question whether or not the assertions made in the application under section 12(2) C.P.C. were supported by factual or documentary evidence. It is further noticed that the admission relating to difference of signature is only limited to two documents. I have also made a visual comparison of the alleged signatures of respondent No.2 on the power of attorney, the written statement and service certificate. The authenticity of these needs to be determined. The matter requires recording of evidence to enable the trial Court to reach a just and logical conclusion.

6. The learned counsel has relied upon 1999 SCMR 196; 2000 SCMR 296 and 2001 SCMR 461 to assert that it is not obligatory upon the Courts to entertain every application under section 12(2) C.P.C. and frame issues. This indeed is the correct exposition of law by the Apex Court and I am bound by it. The facts and circumstances of the present case are clearly distinguishable. There are serious question regarding authenticity of signatures and documents and the circumstances in which the suit was decreed raise serious doubts. The learned lower Courts acted legally and within their powers in entertaining the application under section 12(2) C.P.C. and framing issues to arrive at a just conclusion in a matter that involves valuable rights of the parties. Even otherwise it is evident from the order passed by the learned trial Court that no prejudice, has been caused to the petitioner in view of the fact that the operation of the judgment and decree has only been suspended for the time being and the matter of proof of the fraud is yet to be determined after recording of evidence. In this view of the matter, I do not find any illegality or material irregularity in the order passed by the learned Courts below. In consequence, this petition fails and is dismissed in limine. M.U.Y./N-127/L Revision dismissed.