1994 PLP 1890 (MLD)

This petition under section 115 of the Code of Civil Procedure b in question the order passed by the Civil Court on 26-4-1993 where application under section 12(2) of the Code of Civil Procedure filed by the petitioner was dismissed.

2. The facts necessary for the disposal of this petition are that a suit for redemption was filed by respondents Nos.1 and 2 against respondents Nos.3 to 14 and their brother Muhammad Islam who was the predecessor of the present petitioner. The suit was contested by the defendants but was decreed by the trial Court on 30th of October, 1989. According to the learned counsel for the petitioner, no appeal against the said decree was filed by any of the defendants.

3. However, within one month of the decree i.e. on 21st of November 1989, an application under section 12(2) of the C.P.C. was filed by Muhammad Islam the predecessor of the petitioner in which he alleged that he was never served in the suit nor had he engaged any, counsel and as such, the decree had been procured by practising fraud upon the Court. The trial Court, vide its impugned order dated 26th of April, 1993 dismissed the applications summarily.

4. Syed Farooq Hassan Naqvi, Advocate, the learned counsel for the petitioner has vehemently contended that an application under section 12(2) of the C.P.C. is to be tried as a suit and as such could not have been dismissed by the trial Court without framing any issue or recording evidence. The learned counsel has pointed out that the petitioner categorically denied having engaged any counsel or having not been served in the suit, and an opportunity should have been offered to the petitioners to prove these facts.

5. The legal position as explained by the learned counsel for the petitioners may be correct. Generally the application under section 12(2) of the C.P.C. calls for a factual inquiry and cannot be rejected summarily. However, this is not a rule of universal application and admits of certain exceptions. If the application on the face of it is frivolous or vexatious or in the facts and circumstances of the case the Court finds that it has been filed collusively, with ulterior motive or is mala fide, the application may not be proceeded with any further and can be rejected straightaway.

6. In the present case, there are certain features which clearly show that the application filed by the petitioners was not bona fide and had been instituted with a view to frustrate the decree. The learned counsel for the Petitioners was asked as to whether the petitioners were in possession of the house in question. He replied that though they were not in physical occupation but they were in constructive possession. This clearly shows that the application as been filed for the benefit of other defendants.

7. It is also to be noticed that admittedly the interest of the predecessor of the petitioners was joint and common with that of his brothers and sisters who had been contesting the suit. In these circumstances, it is not believable that the predecessor of the petitioners had no knowledge of the pendency of the suit or the proceedings being taken therein in view of his close relationship with the other defendants. If the predecessor of the petitioners had indeed not been served in the suit or was not aware of it, there is no explanation as to how he learnt of the decree passed against him. In these circumstances, I am clearly of the view that the application was not bona fide and the trial Court was); justified in rejecting it without holding any further proceedings. Dismissed in limine. M.BA./I-104/L??????????????????????????????????????????????????????????????????????????????????? Revision dismissed,