2008 PLP 1931 (YLR)

SYED ASGHAR HAIDER, J.--The respondent filed a suit for recovery of Rs.39,20,000 against the petitioner under the provision of Order XXXVII, C.P.C. The petitioner appeared in the Court and made a statement that he has no objection to decreeing of the suit as prayed for. Consequently, the same was decreed. Later an Execution Petition was filed wherein an application under Order XXXVIII, rule 8, C.P.C. was filed by one Umer Sharif, who subsequently had purchased the disputed property, which stood attached. This application was later, dismissed. The petitioner also filed an application under section 12(2), C.P.C., pleading that he was kidnapped and brought to the Court under threat of life and all documents signed by him, were under duress and coercion and therefore, they were not legally binding. Later yet another application under Order VI, rule 17, C.P.C. was filed for amendment of the application under section 12(2), C.P.C., this application was replied to but while dismissing the application under Order VI, rule 17, C.P.C., the main application under section 12(2), C.P.C. was also dismissed. Aggrieved thereof, the present petition.

2. The learned counsel for the petitioner contended that an application under section 12(2), C.P.C. is required to be tried like a suit, therefore, it is sine qua non, that the other party files reply to the contents or the application, in case of non-compliance, the assertions contained in the application, are to be treated as correct and decree nullified. In the present matter, the respondent did not file may reply to this application, therefore, the assertions are correct and as such, warrant setting aside of the decree. Legal procedure has not been' adhered to by the trial Court while dismissing the application under Order VI, rule 17, C.P.C. because, the main application under section 12(2), C.P.C. could not be dismissed in the same order, as both matters were distinguishable. This also is against the legal norms and standard procedure. Lastly, after conclusion of arguments on 4-4-2008, the learned Court was pleased to summon record, this also is not in consonance with standard procedure. because record is to be perused before conclusion of arguments, to facilitate both parties to make arguments and remove any ambiguity. This vitiates the entire proceedings.

3. The learned counsel for the respondent contested the assertions raised by the learned counsel for the petitioner and submitted that the application under Order VI, rule 17, C.P.C. was without any basis and therefore, was dismissed. Like-wise, the application under section 12(2), C.P.C. does not fall within the ambit and realm of section 12(2), C.P.C. as no specific and clear, allegations of fraud, mis-representation or lack of jurisdiction, were mentioned in the same, therefore, it absolutely was not essential for the Court to ask for reply and the matter could be decided on the arguments only, thus the order be maintained.

4. I have heard the learned counsel for the parties and perused the impugned order.

5. The language couched in sec tion 12(2), C.P.C. clearly stipulates that "proceedings are to be tried like a suit", it thus clearly visualizes the filing of written statement/reply by the other party. In case of non-compliance adverse presumption may be drawn. In the present matter, the learned counsel for the respondent has conceded that no formal reply to the application under section 12(2) C.P.C. was filed. Therefore, procedural compliance in the application under section 12(2), C.P.C. was not made. This ground alone vitiates the proceedings and such as, the impugned order is not sustainable to the extent of dismissal of the application under section 12(2), C.P.C. As far as the application under Order VI, rule 17, C.P.C. is concerned, the order is unexceptionable, as rightly pointed out by the learned counsel for the respondent that the additional ground prayed to be incorporated has already been urged and answered. In these circumstances, this petition is partly allowed, the impugned order is set aside and the proceedings are remitted to the trial Court who seek a reply on the application under section 12(2), C.P.C. from the respondent and thereafter, proceed to decide the matter, on merits in accordance with law. M.H./F-17/L Case remanded.