2019 PLP 1651 (CLC)

MAMOON RASHID SHAIKH, J.

The instant petition is directed against the judgment, dated 07.04.2009, passed by the Additional District Judge, Okara, whereby the petitioner's application under Section 12(2) of the C.P.C.; against the decree, in appeal, dated 02.12.1997, passed by the Additional District Judge, Okara, decreeing respondents Nos.1 to 4's suit, against the petitioner and respondents Nos.5 to 14, for declaration in respect of the property in dipuste; has been dismissed.

2. The learned counsel for the petitioner submits that the impugned judgment, dated 07.04.2009, has been passed by misreading and non-reading of evidence. The impugned judgment is based on conjectures and surmises. Further submits that the findings of the learned Court below on Issue No.1 is against the law and facts of the case.

3. The learned counsel for respondents Nos.1 to 4 supports the impugned judgment. Submits that the petitioner's application under section 12(2) of the C.P.C. was hopelessly barred by time. The petitioner was unable to prove that the decree, dated 07.04.2009, was obtained by respondent No.1, through fraud and misrepresentation or that the decree has been passed without jurisdiction. As such the petitioner's application warranted outright dismissal.

4. I have considered the arguments of the learned counsel for the parties and have also gone through the record with their assistance.

5. I find that respondents Nos.1 to 4's suit, against the petitioner was decreed by the learned appellate Court below through the judgment arid decree, dated 02.12.1997. The petitioner moved his application under Section 12(2) of the C.P.C. for setting aside the said decree after the lapse of more than nine (9) years, that is to say, on 17.04.2006, inter alia on the grounds that respondents No.1 deliberately gave his wrong address in the suit/appeal so as to non-suit him. Respondents Nos.1 to 4 have, therefore, played a fraud upon the Court. Out of the divergent pleadings of the parties, the following Issues were framed:- "

1. Whether the decree and judgment dated 02.12.1997 is result of fraud, misrepresentation and want of jurisdiction ? OPA

2. Whether petitioner has no cause of action ? OPR

3. Whether the petitioner (sic) is barred by time ? OPR

4. Relief."

6. I note that even though the learned Court below has given findings on each Issue, however, the learned Court below has not given a categorical finding on Issue No.3, which pertains to the point of limitation. Under the circumstances, the impugned judgment, dated 07.04.2009, is set aside and the matter is remanded to the Court of the Additional District Judge, Okara, for decision afresh in accordance with the law.

7. The petitioner's application under Section 12(2) of the C.P.C. shall be deemed to be pending before the said Court and shall be decided afresh strictly in accordance with the law on the basis of the evidence already available on the file. The said learned Court shall further ensure that separate and distinct findings are given on all the issues in terms of Order XX, Rule 5, of the C.P.C. There is no order as to costs. MWA/I-10/L Case remanded.