2006 PLP 531 (SCMR)

JAVED IQBAL, J.

This petition for leave to . appeal is directed against order, dated 21-9-2004. whereby the revision petition preferred on behalf of petitioner has been dismissed and order, dated 21-6-2004 of the learned Additional District Judge has been kept intact whereby the application preferred on behalf of petitioner under section 12(2), C.P.C. has been rejected.

2. Precisely stated the facts of the case are "that the respondent filed a suit for recovery of Rs.10,00,000 against the petitioner, in the summary jurisdiction conferred upon the learned District Judge, under Order XXXVII, C.P.C. on the basis of promissory note dated 8-8-2000. Petitioner's application seeking leave to appear and defend the suit was allowed and he was permitted to file the written statement. It has been averred in the present petition that during the pendency of the suit, through an agreement dated 5-5-2003, arbitrators ' were appointed, who rendered the award on 10-5-2003, thereby directing the petitioner to pay, a sum of Rs.2,85,859 to the respondent-Company within a period of 15 days. According to the petitioner, although the said amount was paid to the respondent-Company and the matter stood resolved by arbitrators through award, yet it transpired, on 4-6-2004 that the respondent has obtained an ex parte decree as far back as on 17-3-2003. On attaining knowledge about the passing of the aforesaid decree, the petitioner filed an application under section 12(2), C.P.C. challenging the said decree, however, petitioner's application was dismissed by the learned Additional District Judge vide impugned order, dated 21-6-2004", which was assailed by means of a revision petition which has been dismissed vide order impugned, hence this petition. 2-A. Ch. Muhammad Hanif Zahid, learned Advocate Supreme Court entered appearance on behalf of petitioner and urged with vehemence that application preferred on behalf of petitioner under section 12(2), C.P.C. could not have been dismissed summarily without framing of issues and recording the evidence which was essential for the determination of the allegations of fraud and misrepresentation as alleged in the application. It is next contended that the suit could not have been filed at Lahore as the main business transaction was done at Yazman and a blank note was got signed at Yazman which aspect of the matter has been ignored by the Courts below causing serious prejudice against the petitioner.

3. We have carefully examined the contentions as portraited on behalf of petitioner and agitated in the light of relevant provisions of law and record of the case. We have also perused the order, dated 21-6-2004 passed by learned Additional District Judge as well as order impugned. We are not persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of petitioner that without framing of issues and recording the evidence no application moved under section 12(2), C.P.C. could have been dismissed for the simple reason that framing of issues and recording of evidence is not obligatory for the. Court and such application can be rejected on the basis of available evidence and relevant record if it is considered sufficient to decide such an application. It is worth-mentioning that primarily it is the satisfaction of the Court either to frame the issue, record evidence or decide such applications as may be deemed fit and proper after considering the circumstances of each case. No yardstick can be fixed for adjudication of such application. The learned Single Judge in ,Chambers has rightly relied upon the dictum as laid down by this Court in case of Ghulam Muhammad v. M. Ahmed Khan 1993 SCMR 662 wherein it was observed as follows:-- "It is correct that the determination of allegations of fraud and misrepresentation, usually involved investigation into the questions of fact but it is not in every case that the Court would be under obligations to frame issues, record evidence of the parties and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. In our view, the matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. It is within the competence of the Court to frame formal issues and record evidence if the facts of a particular so demand."

4. It is well-entrenched legal proposition that the framing of issues depends on the circumstances of each case, nature of alleged fraud and the decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate object of section 12(2), C.P.C. which is to avoid, protracted and the time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below which are already overburdened.

5. The case in hand has been adjudged on the touchstone of the criterion as mentioned hereinabove. It has been observed that the petitioner had even not filed the written statement at the proper time that too in spite of various opportunities and such deliberate omission or intentional lapse cannot be rectified by exploiting the provisions contemplated in section 12(2), C.P.C. which is not meant for it. The learned Advocate Supreme Court on behalf of petitioner when asked that as to how the decree, dated 17-9-2003 was obtained by employing deceitful means or through fraud or misreading, no convincing answer could be given. The learned Additional District Judge has exercised its discretion judiciously determination whereof has been upheld by the learned High Court vide judgment impugned which is in consonance with law as laid down by this Court in the following authorities:- Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR

46. In sequel to above mentioned discussion the petition being devoid of merit is dismissed and leave refused. S.A.K./W-1/SC?????????????????????????????????????????????????????????????????????????????????? Leave refused.