2004 PLP 1677 (MLD)

The brief facts out of which present writ petition arises are that Abdul Aziz deceased, husband of respondent No.1 (Mst. Nasiban Bibi), filed a suit or declaration against the present petitioners and Mst. Naziran Bibi before the Civil Judge Gujranwala on 31-12-1997. The contents of plaint reveal that late Abdul Aziz father of petitioners Nos.2 to 4 and respondent No.2 had solemnized the marriage with respondent No.1 before 15/16 years ago. The contents of plaint further reveal that out of this wedlock, Mst. Samia Bibi was born. It is further added that respondent No.1 has been serving her husband Abdul Aziz, deceased and in lieu thereof, the deceased was pleased io gift land in question in favour of respondent No.1/original plaintiff on 23-11-1997. The contents further reveal that late Abdul Aziz had admitted the oral gift through acknowledgement dated 30-11-1997 and after announcement of oral gift, late Abdul Aziz had relinquished his possession over the property in dispute on 23-11-1997. Respondent No.1/plaintiff has been occupying the possession of the property in dispute since 1997 on the basis of oral gift and on account of interference of the petitioners, the defendants have been trying to snatch the property in question from respondent No.1, hence, respondent No.1 filed the aforesaid civil suit. The present petitioners/defendants filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:-- ISSUES: (i) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD (ii) Whether the suit is not maintainable in its present form? OPD (iii) Whether the suit is bad due to non-joinder of the parties? OPD (iv) Whether the alleged deed is neither a gift nor a will? OPD (v) Whether the suit property was gifted by the deceased Abdul Aziz in favour of the plaintiffs on 23-11-1997 and the same was also acknowledged? OPP (vi) Whether the plaintiff is coming as owner in possession of the suit property after the alleged gift? OPD (vii) Whether the plaintiff is entitled to get a decree for declaration and permanent injunction as has been prayed for in the plaint? OPP (viii) Whether the suit is false and frivolous and as such defendant is entitled to special costs under section 35-A? OPD (ix) Relief. The learned trial Court decreed the suit vide judgment and decree dated 28-10-2000. The Petitioners and Mst. Naziran Bibi did not challenge the said decree in appeal but filed an application under section 12(2), C.P.C. before the learned trial Court on 21-3-2002. The same was rejected by the learned trial Court vide impugned order dated 20-3-2003. The petitioners being aggrieved filed 'a revision petition before the learned Additional District Judge, Gujranwala on 30-4-2003, which was also dismissed by the learned Additional District Judge, Gujranwala, vide impugned judgment dated 3-1-2004, hence the present writ petition.

2. The learned counsel of the petitioners submits that respondent No.1 played fraud with the petitioners and fraudulently, she secured gift deed in her favour at the time when the deceased Abdul Aziz was under apprehension of death and in fact, the deceased died after three days of execution of gift deed in question. He further submits that possession of the property in question had never been handed over to respondent No.1/plaintiff, but both the Courts below did not consider this aspect of the case at all. He further submits that the gift deed was executed by respondent No.1 by fraud and misrepresentation, therefore, application filed by the petitioners before the learned trial Court was maintainable, but both the Courts below erred in law to dismiss the application of the petitioners without framing of any issue and without application of judicial mind. He further submits that respondent No.1 failed to prove on record that the land in question was orally gifted in her favour by the deceased and possession was handed over to her by the donor, therefore, judgments of both the Courts below are not in accordance with law laid down by Superior Courts. In support of his contention, he relied upon the following judgments:-- "Lal Din and another v. Muhammad Ibrahim" (1993 SCMR 710). "Maqsood Ahmad v. The State" (1995 SCMR 359). "Abdur Razzaq and others v. Shah Jehan and others (1995 SCMR 1489). "Mst. Rahat Mughal v. Mst. Zaheera Badar" (1999 YLR 380). "Zakirullah Khan and others v. Faizullah Khan and others (1999 SCMR 971).

3. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record.

4. It is better and appropriate to reproduce section 12(2) of C.P C to resolve the controversy between the parties in the present case:-- "Where a person challenges the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgments, the decree or order not by a separate suit." Mere reading of the aforesaid provisions of law, it is crystal clear that the fraud and misrepresentation must be committed by a party with the Court or during the proceedings in the Court. In the present case, both the Courts below have given the concurrent findings of facts against the petitioners and no fraud and misrepresentation has been committed by respondent No.1 with the Court, meaning thereby the scope of section 12(2) of C.P.C. can neither be extended beyond the ground of fraud, misrepresentation and defect of jurisdiction enumerated therein, as per law laid down by the Superior Courts in the following judgments:-- "Mst. Nasira Khatoon and others v. Mst. Aisha Bibi and others" (2003 SCMR 1050). "Muhammad Vikil v. Muhammad Yasin." (1986 CLC 1530). "State through D.A.G. v. Banda Gull and 2 others" (1993 SCMR 311). Mst. Mamudi Begum v. Malik Muhammad Ashraf." (1997 SCMR 1608). "Allah Wasaya v. Irhad Ahmed" (1992 SCMR 2184). "Abdur Rahim and others v. State through Border Area Committee" (1993 SCMR 668). In fact, the petitioners have challenged the decree of the learned trial Court under section 12(2) of C.P.C. that the learned trial Court decided the case against the petitioners without application of judicial mind and without proper appreciation of evidence on record and in violation of law laid down by the Superior Courts. This ground is not sufficient to file an application under Section 12(2) of C.P.C. In such circumstances, the petitioners had alternative remedy to file an appeal against the judgment and decree of the learned trial Court before the learned Appellate Court. As mentioned above, the learned counsel of the petitioners failed to show that any fraud or misrepresentation was committed by any of the parties with the Court or during the Court precedings before the trial Court. Both the Courts below have given concurrent findings of facts and decided the matter after application of judicial mind and proper appreciation of record and in such situation, the learned trial Court as well as Revisional Court was justified not to frame the issues which is in consonance with law laid down by the Honourable Supreme Court in "Ghulam Muhammad v. M. Ahmad Khan and 6 others" (1993 SCMR 662). It is also settled principle of law where an application under section 12(2) of C.P.C. appeared to be improper, mala fide and having been made only to protect the proceedings and to abuse the process of the Court, the same could be dismissed without framing of any issue or recording of evidence of the parties. In arriving to this conclusion, I am fortified by the following judgment:- "Mst. Hussina Khatoon v. United Bank Ltd." (1993 MLD 1088). Ali Asghar v. Muhammad Ramzan Gauri and others" (1996 MLD 530). "Mst. Nasira Khatoon and others Mst. Aisha Bibi, and others" (2003 SCMR 1050).

6. It is also settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of Courts below while exercising powers under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court and by the Division Bench of this Court in the following judgments:-- "Syed Azmat Ali v. The Chief Settlement arid others (PLD 1964 SC 260). "Board of Intermediates and S.E. v. M. Mussadaq Naseem" (PLD 1973 Lahore 600). The judgments cited by the learned counsel of the petitioners are distinguished on facts and law, even otherwise, it is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per principle laid down by the Honourable Supreme Court in "Trustees of the port of Karachi v. Muhammad Saleem" (1994 SCMR 2213). In view of what has been discussed above, this writ petition has not merit and the same is dismissed. M.A.W./A-164/L Petition dismissed.