2010 PLP 170 (CLC)

MAULVI ANWARUL HAQ, J.

On 28-12-1999 the petitioner filed a suit against the respondents to challenge order, dated 20-9-1999 in an earlier suit filed by respondent No.2 against him wherein the respondent No.1 appeared as his attorney and conceded the suit and got recorded a promise that the petitioner will transfer the suit property to respondent No.2 on his return from abroad. The learned Court recorded the said statement and while observing that the defendant (i.e. the petitioner) will remain bound by the said promise dismissed the suit as withdrawn. A decree was accordingly prayed for that the said statement and the order is illegal and void. The suit was contested: In the written statement, a preliminary objection was taken that the suit is barred in view of the provisions of section 12(2), C.P.C. It was also mentioned that a suit for specific performance on the basis of the said statement has been filed which is pending. A preliminary issue was framed, which was answered against the petitioner and the suit was dismissed as not maintainable on 7-2-2001. A first appeal filed by the petitioner had been dismissed by a learned Additional District Judge, Rawalpindi, on 23-2-2001.

2. Learned counsel for the petitioner contends that since the words, "fraud", "collusion" or "misrepresentation" have not been used in the plaint, the suit could not have been dismissed on the said ground. Learned counsel, for the respondents supports the impugned order.

3. I have gone through the copies of the records. It is but apparent upon a plain reading of the plaint that the petitioner feels aggrieved of the said conduct of his attorney as a result whereof the said proceedings and order came to be recorded. It is true that the said words mentioned in section 12(2), C.P.C. have not been used. However, when confronted as to how will the petitioner describe the said conduct of his attorney, the response is that it was fraud and collusion. This being so, the impugned orders have been passed with jurisdiction while holding that the suit is not competent. The learned counsel then contends that let the plaint be treated as an application under section 12(2), C.P.C. I have considered the said request. On my query I am being told that the suit filed by the respondents against the petitioner for specific performance on the basis of the statement got recorded by the attorney of the petitioner is still pending. This being so the petitioner can very well demonstrate in the said suit itself that the statement was fraudulently or collusively made and the order sought to be enforced in the said suit is liable to be set aside. Article 58 of the Qanun-e-Shahadat Order 1984, does cater for such a situation. The civil revision is dismissed but without any orders as to costs. M.P.A./M-535/K Petition dismissed.