P L D 2006 Lahore 714 (PLP)

SYED ZAHID HUSSAIN, J.

Shameer son of Mamand had filed an application under section 12(2) of Code of Civil Procedure, 1908 qua decree dated 26-6-1985 which application was accepted by the trial Court on 4-12-1995. However, on a revision petition filed by Noora (respondent No.1), the order of the trial Court was reversed by the learned Additional District Judge, Jhang on 9-2-2000 which has been assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The background of the litigation briefly stated is that a declaratory suit was filed by Ameer and Shameer (both brothers) that they were owners of land measuring 25 Kanals and Mutation No.1888 dated 11-12-1974 whereby the land was purported to have been transferred to Noora and sale by Noora of the same in favour of Ghulam Muhammad vide sale-deed dated 18-10-1975 was illegal and ineffective qua their rights. Their case in the plaint was that they were victim of fraud and forgery. While the suit was being tried before the trial Court, Ameer one of the plaintiffs offered the decision of the suit on the basis of oath. The statement of Ameer and that of Noora were recorded by the Court on 26-6-1985 and the suit was dismissed by the trial Court on the said date. Shameer who was one of the plaintiffs in the said suit made an application under section 12(2) of Code of Civil Procedure 1908 that since he was owner to the extent of half of the suit-land, the said suit could not be decided on the basis of statement of his brother Ameer. The application was contested. After due trial the same was accepted by the trial Court on 4-12-1995 which order as mentioned above was. reversed by the revisional Court on 9-2-2000.

2. The learned counsel for the parties have been heard.

3. The perusal of the statements made on 26-6-1985 by Ameer and Noora are of importance on the basis of which the suit was dismissed. The statement made by Ameer shows that he acted for himself and made the statement as such. The statement of Noora defendant/respondent clearly claimed the purchase of land from Ameer. Neither Shameer was present in Court nor any statement was made by him or by his authorized agent which could bind him. The statement of Ameer though he was brother of Shameer could not be made use of against Shameer to deprive him of his valuable right in the property which could be determined on due trial of the suit. The learned trial Judge was thus justified to accept his application which order was erroneously and illegally interfered with by the learned Additional District Judge, Jhang. In the impugned judgment the learned Additional District Judge has himself observed that "Shameer would be at liberty to file independent civil suit if law so permits him". Suffice it to observe that since he had already filed application under section 12(2) of Code of Civil Procedure, 1908 which was the only remedy for him, no direction for any independent suit was warranted. The approach adopted by the learned Additional District Judge while reversing the order of the learned trial Court cannot be regarded as legal nor was it justified by the facts and circumstances of the case. The contention of the learned counsel for Noora that since the sale made in favour of Ghulam Muhammad had become subject-matter of pre-emption suit and a decree was passed in favour of Muhammad Yar, pre-emptor, therefore, application under section 12(2) of Code of Civil Procedure, 1908 without impleading him was incompetent, has no substance inasmuch that all those who were originally party to the suit had been impleaded as party in the application under section 12(2) of Code of Civil Procedure, 1908. The said application did not suffer from any such defect. It is, however, observed that since the suit qua Shameer is yet to be tried by the trial Court, such a plea can be raised in the suit which of course will then be considered by the Courts seized of the matter according to law. In view of the above, judgment dated 9-2-2000 passed by the learned Additional District Judge, Jhang is declared as illegal and of no legal effect. As a result whereof, order of the learned trial Court dated 4-12-1995 will stand revived. Consequently the suit qua Shameer will be tried and decided in accordance with law by the trial Court. The petition is accepted accordingly with no order as to costs. S.M.B./S-127/L?????????????????????????????????????????????????????????????????????????????????? Petition accepted.