2010 PLP 631 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

The petitioner Shahid Raza son of Safdar Ali filed a suit for possession under section 9 of the Specific Relief Act against the predecessor in interest of respondents Nos.3 to 9 namely Muhammad Abdullah. The defendant Muhammad Abdullah, put appearance before the learned trial Court and filed an application under Order VII, Rule 11, C.P.C. alleging therein that the plaintiff and defendant are joint owners of the property. It was further alleged that without partition of the joint property the plaintiff cannot claim for the possession of the specific portion of the joint property and the said application filed under Order VII, Rule 11 of C.P.C. was dismissed vide order, dated 3-9-2008, as the defendant was proceeded ex parte. Thereafter the plaintiff was directed to produce ex parte proof and the case was adjourned to 31-10-2008 and after recording the evidence of the plaintiff the suit was decreed ex parte vide judgment and decree, dated 19-12-2008.

2. Later on, on 3-2-2008, the respondents moved an application under section 12(2) of C.P.C., on the ground that the impugned judgment on decree has been obtained through fraud and misrepresentation. The said application under section 12(2), C.P.C. was dismissed by the learned trial Court vide order, dated 29-4-2009. The respondents assailed the order, dated 19-4-2008 through revision petition and the same was accepted vide order, dated 8-9-2009. Hence, the instant writ petition has been filed for setting aside the impugned order, dated 8-9-2009, passed by the learned Additional District Judge D.G. Khan.

3. Learned counsel for the petitioner contended that the impugned order, dated 8-9-2009 is against law and facts and is liable to be declared null and void. That no element of fraud or misrepresentation from the side of the petitioner/plaintiff has been correctly visualized. That the defendant Muhammad Abdullah and his counsel committed wilful absence from the proceedings of the learned trial Court and the learned trial Court has rightly observed that Mr. Jehangir Khan Wadani, Advocate was the Advocate of the defendant and he was properly engaged and it was his responsibility to pursue the case. The learned counsel relied upon "Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi" (2002 SCMR 1761), Shafi Muhammad and 13 others v. Muhammad Farooq and 3 others" (1989 CLC 937), "Mrs. Anis Haider and others v. S. Amir Haider and others" 2008 SCMR 236), "Industrial Development Bank of Pakistan v. National Engineering Works and others" (1993 MLD 1344), during the arguments. Learned counsel for the petitioner submitted that it was not necessary that in each and every case in which an application under section 12(2), C.P.C. was filed, issues were necessary to be framed. That the learned Additional Sessions Judge committed illegality while setting aside the order, dated 29-4-2009 passed by the learned trial Court, that the order passed by learned Additional District Judge is not based on cogent and sagacious reasoning and the same is liable to be set aside.

4. It is evident from the perusal of record that the learned Additional District Judge while passing the impugned order has observed as under:-- "I am afraid that impression taken and reasons advanced by learned Civil judge were not much confidence inspiring rather misconceived. There is no cavil to the proposition that a decree passed against a dead person is void ab initio as per dictums laid down by this Court. Learned counsel further observed that petitioners Nos. 1 and 2 are minors whereas respondent No.3 is the widow of original defendant Abdullah, widow as parda -observing lady and Courts are supposed to protect their interest. When an Advocate is engaged by his client, who later on expires, the advocate has least interest in the case unless legal heirs/family members approached him, therefore, non-appearance of above advocate in the above suit after the death of his client was not unnatural. Even if, the learned Civil Judge opts to dismiss such like application, he was supposed to keep in view the questions raised on behalf of petitioners, which involved and required thorough inquiry/investigation not possible without recording the evidence. Whether any misrepresentation was exercised by respondent No.1 or any fraud was committed by, or the question requiring detailed inquiry into the fact. Impugned order passed by learned Civil Judge was not maintainable which is hereby set aside. Learned Court shall proceed into the matter after framing the issues and shall record the evidence. Matter is remanded back in above terms, petition is accepted."

5. I have heard the arguments of learned counsel for the petitioner and perused the impugned order, dated 29-4-2009, passed by the learned Additional District Judge, D.G. Khan, which is based on cogent reasons. The defendant after submitting the written statement in the learned trial Court disappeared from the scene and the ex parte decree was passed against the predecessor-in-interest of the present respondents, who filed an application under section 12(2), C.P.C. for setting aside the same on the ground of fraud and misrepresentation. The controversy between the parties can only be resolved after framing of the issues and recording the evidence. I am fortified from the judgment of Supreme Court of Pakistan reported in "Mrs. Anis Haider and others v. S. Amir Haider and other's" (2008 SCMR 236), it is held when there are serious allegations of fraud, the application under section 12(2) of C.P.C. cannot be decided without recording of evidence. The same ratio is settled in "Muhammad Akram Malik v. Dr. Ghulam Rabbani and others" (PLD 2006 SC 773) and "Mrs. Anis Haider and others v. S. Amir Haider and others" (2008 SCMR 236) 2008 SCMR 236, it is held when there are serious allegation of fraud, the application under section 12(2) of C.P.C. cannot be decided without recording of evidence. The same ratio is settled in "Muhammad Akram Malik v. Dr. Ghulam Rabbani and others" (PLD 2005 SC 773 and "Mr. Anis Haider and others v. S. Amir Haider and others" (2008 SCMR 236). Learned trial Court committed illegality in dismissing application, filed under section 12(2) of C.P.C., for setting aside judgment and decree, dated 19-12-2008 without framing issues on the question of fraud. Learned lower Court rightly allowed revision and remanded the case to learned trial Court with the direction to decide the application filed by defendant under section 12(2) of C.P.C. afresh, after framing a necessary issue and then after recording of evidence of the parties on said issue. Learned counsel for writ petitioner has not pointed out any illegality or irregularity committed by learned Additional District Judge. I would not like to interfere in the judgment, dated 19-12-2008 passed by learned Additional District Judge in writ jurisdiction. This writ petition is dismissed in limine. M. U.Y/S-25/L Petition dismissed.