2011 YLR 2614 (PLP)

FAISAL ARAB, J.

The applicant filed an application under section 12(2); C.P.C. seeking setting aside of the Judgment and Decree date 25-8-2006 passed by Civil Court in Suit No.3 of 2004 filed by respondent No.1 against respondent No.2 for specific performance of the contract on the ground that respondent No.2 had already agreed to sell the suit property to him. The case of the respondent No.1 was that respondent No.2 entered into an agreement to sell on dated 29-8-2002 for sale of the suit property bearing C.S. No.147 situated at Main Bazar Math District Badin, and is avoiding to complete the transaction. The suit was decreed in favour of the respondent No.

1. Thereafter the applicant filed an application under section 12(2), on 31-3-2009, seeking setting aside of the decree on the ground that prior to the sale agreement in favour of respondent No.1, the respondent No.2 has entered into an agreement for the sale of the same property with him on 8-1-2002. The application filed under section 12(2), C.P.C. was dismissed by the trial Court and so also the Appeal filed by the applicant met the same fate hence this civil revision application. The only ground that has been urged is that the trial Court without framing issues decided the application under section 12(2), C.P.C. It is not mandatory requirement of law that in every application filed under sections 12(2), C.P.C., issues are to be framed. It defeats the very object for which amendment in section 12(2) was brought about through Law Reforms Ordinance. Prior to such amendment a separate suit was to be filed which used to delay the fruits of the decree in favour of the decree holder until and unless the suit filed on the ground of fraud, misrepresentation and want of jurisdiction is first decided. Under section 12(2), C.P.C. the Court is now empowered to decide the question of fraud, want of jurisdiction by merely deciding an application. The circumstances of the case may or may not require recording of evidence. If the application can be decided without recording of the evidence then the trial Court is not bound to record evidence. If in every application filed under section 12(2), C.P.C. evidence is to be invariably recorded then it would amount to convert an application filed under section 12(2), C.P.C. into a regular suit. The intent of the legislature on the contrary is converse. It is for this reason that suit was barred and remedy was replaced by filing of application under section 12(2), C.P.C. In the present case the applicant claims that he entered into an agreement to sell in January, 2002, paid Rs.20,00,000 out of total sale consideration of Rs.50,00,000 and the balance Rs.30,00,000 were to be paid at the time of registration of sale-deed but for seven long years from 2002 upto 2009 the applicant initiated no legal proceedings to get the transaction completed. It was only in 2009 that application under section 12(2), C.P.C. was filed. In view of this background both the courts below rightly rejected the application under section 12(2), C.P.C. without recording evidence in the matter and this Court have found no legal justification to interfere with the concurrent findings of the Court below particularly the reasoning of the civil court which is legally sound and based on cogent reasons. The civil revision application is, therefore, dismissed' in limine along with the listed applications. In case the applicant has made any payment to respondent No.2 and if the law of limitation permits he can first establish the same in legal proceedings and seek its recovery if he is so advised. S.A.K./M-107/K Revision dismissed.