2025 PLP 1394 (MLD)

Wiqar Ahmad, J.

Through instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners have prayed for following relief: "that on occeptance of this writ petition, the impugned order and judgment dated 27.04.2017, passed by respondent No.9 moy kindly be declared as illegal, unlawful, void ab initio, of no legal effect and ineffective upon the rights of the petitioners and as such be set aside and the order and judgment dated 22.01.2014 of respondent No.10 may kindly be restored."

2. As per contents of instant petition, petitioners along with one Muslim Khan son of Umara Khan, Mst.Sham-i-Roshana (\Proshana), Mst.Quraisha daughters of Mursaleen Khan, Iqbal Hussain, Sabir Hussain sons of Mst.Miraj Bibi daughter of Mst.Muqaisha, grandchildren of Mursaleen Khan had filed Civil Suit No.1971 on 29.06.2001 against petitioner No.3, Raza Khan son of Akbar Khan, predecessor-in-interest of petitioners and one Danish Khan son of Mursaleen Khan for declaration etc in respect of suit property bearing Khasra No.2136 measuring one Kanal and 19 Marlas situated at village Sufaid Dher, Peshawar, for declaration cum perpetual injunction to the effect that mutation No.6434 dated 19.11.1991 was entered and attested with collusion and connivance of defendants Nos. 1 and 3 (predecessor in interest of petitioners). During pendency of suit, plaintiffs had filed an application for withdrawal of suit along with compromise deed dated 25.02.2001 Ex.PB) on the basis of which suit had been dismissed as withdrawn on 02.03.2001. Then an application under Section 12(2) C.P.C. was filed by one Mst. Shamiro (plaintiff No.11 in main suit) on 02.07.2010, which was dismissed by learned civil Court below vide order dated 03.11.2010. Thereafter, another application under Section 12(2) C.P.C. had been filed on 11.05.2011 by legal heirs of Danish Khan (defendant No.3 in main suit), which application was also dismissed vide order dated 20.04.2012. Then respondents Nos.l to 8 filed an application under Section l2(2) C.P.C. on 07.01 .2013 before learned civil Court below, which was also dismissed by learned civil Court with cost of Rs.5000/- vide judgment dated 22.01.2014. Respondents Nos.l to 8 feeling aggrieved from impugned judgment, filed civil revision before leamed Additional District Judge-III, Peshawar, which was allowed by learned revisional Court vide judgment dated 27.04.2017, thereby remanding the case back to civil Court below with direction to frame issues and record pro and contra evidence in application under Section 12(2) C.P.C. filed by respondents Nos.l to

8. Aggrieved from impugned judgment, petitioners have filed instant writ petition.

3. Arguments heard and available record perused.

4. Perusal of record reveals that respondents had brought a suit before learned civil Court on 29.06.2000. Then an application was filed for withdrawal of suit along with an application for fixation of early date of hearing on 02.03.2001. Learned civil Court on fixation of early date of hearing, had requisitioned the record where statement of Special Attorney for the appellant had been recorded on 02.03.2001. In his statement, his Power of Attorney has also been exhibited. Besides, a compromise deed was also exhibited in his statement Ex.PB and an Iqrar Nama as Ex.PC, in pursuance thereof suit had been dismissed as withdrawn. Then application had been filed under Section l2(2) C.P.C. on 02.07.2010, which was dismissed on 03.11.2010. Thereafter, another application under Section l2(2) C.P.C. was filed on 14.01 .2013 and it was dismissed by learned civil Court on 22.01.2014 at a cost of Rs.5000/-. A revision petition filed against said order was also dismissed vide judgment dated 27.04.2017 by learned Additional District Judge-III, Peshawar.

5. So far as present application under Section l2(2) C.P.C. is concerned, same was filed on 14.01.2013 after 12 years of the judgment and decree dated 02.03.2001. Learned civil Court had dismissed application under Section l2(2) C.P.C. but revision petition filed there-against was allowed vide order dated 27.04.2017 of learned Additional District Judge-III, Peshawar and the matter was remanded back for recording pro and contra evidence. Perusal of application under Section 12(2) C.P.C. reveals that it has been filed on 14.01.2013. The assertions made in application under Section l2(2) C.P.C. was that the mutation No.6434 attested on 19.11.1991 had been the result of fraud and misrepresentation; that plaintiffs had filed a declaratory suit there-against and that in the meanwhile some quarrel had taken place between the parties as a result of which an FIR had also been registered, in which matter had been settled through compromise and that defendants in the garb of said compromise had got the matter decided in their favour; that the compromise on the basis of which suit had been withdrawn, was fake and forged one. There is no assertion in the application under Section l2(2) C.P.C. about the role of their Special Attorney and their counsel, both of them had submitted application before civil Court for withdrawal of the suit. The civil Court recorded statement of the Special Attorney where his Special Attorney has also been executed. The compromise deed and an Iqrar Nama had been exhibited therein. Applicants/petitioners had never contended in their application that their Attorney had defrauded them or that he had not recorded statements before the Court or that their counsel had not filed applications before the Court and that their counsel had not been instructed not to move application for withdrawal of the suit. Hon'ble Supreme Court of Pakistan while rendering its judgment in case of "Messrs Dadabhoy Cement Industries Ltd and 6 others v. National Development Finance Corporation, Karachi" reported as PLD 2002 SC 500 has held that while moving an application under Section l2(2) C.P.C., the basis of fraud or misrepresentation had to be specifically described along with necessary details in the very application under Section 12(2) C.P.C. Relevant observation of the august Supreme Court of Pakistan rendered in said judgment, is also reproduced hereunder for ready reference: "As far the allegations that the compromise, decree was obtained by fraud, coercion and misrepresentation, the petitioners failed to substantiate the same as no particulars or details thereof had been given in their application under section l2(2), C.P.C. ond mere allegation not supported by any material, would not invariably warrant inquiry or investigation in each case." Similarly, in case of "Bashir Ahmad through Legal Representative and others v. Muhammad Hussain and others" reported as PLD 2019 Supreme Court 504, Hon'ble Apex Court has held: This vague assertion on such a crucial fact would not be of any legal avail to the appellant, as a mere bold assertion of fraud or concealment would not legally suffice to establish the appellant's said claim. Moreover, it is by now a settled principle that when a person raises the ground of fraud or concealment to allege his claim or defend his stance, the same has to be specifically pleaded with clear particulars. Some of the leading cases decided by this court are Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1997 SC 75), Izzat Bakhsh v. Nazir Ahmad and 13 others (PLD 1976 SC 508), Faizum alias Toor v. Nander Khan and others (2006 SCMR 1931), Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431) and Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315). Further reliance in this respect may also be placed on the judgment of apex Court given in case of "Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased) through LRs and others" reported as PLD 2024 SC 262.

6. The application of petitioner was not containing specific details about fraud that might have been committed in the proceedings in civil suit, which included filing of application for withdrawal, recording of statement of Attorney and exhibiting documents of compromise therein. In absence of such details in respect of alleged fraud in the proceedings of the Court, the application filed under Section l2(2) C.P.C. was not at all maintainable. Learned counsel for petitioners was also asked but he remained unable to explain that why petitioners had remained silent for more than a decade for challenging the order of withdrawal of suit dated 02.03.2001 on 14.01.2013. In the meanwhile, other two applications under Section l2(2) C.P.C. had also been filed and decided and plea of lack of knowledge on behalf of petitioners has not at all been digestible. The application under Section 12(2)C.P.C. was also barred by law of limitation specifically Article 181 of First Schedule of Limitation Act 1908. Learned revisional Court has therefore wrongly interfered in the matter and passed an order, which was not having the support of record of the case. It appears that learned appellate Court had not gone through the record of the case minutely. The requisite grounds for exercise of revisional jurisdiction was not available to the Revisional Court therefore, interference of revisional Court in the matter was not at all justified. The impugned order was therefore calling for interference of this Court. Resultantly, instant Constitutional petition is allowed, impugned order dated 27.04.2017 of learned Additional District Judge-III, Peshawar is set aside and as a result thereof application of respondents Nos.l to 8 filed under Section l2(2) C.P.C. stands dismissed. UN/89/P Petition allowed.