2022 PLP 2160 (YLR)

MUSARRAT HILALI, J.

Through the petition in hand, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioners have prayed for setting aside the impugned order dated 28.11.2019 passed by learned Appellate Court and restoring that of the learned trial court dated 03.07.2019.

2. Briefly stated facts of the case are that the petitioners filed a suit for declaration before the learned Senior Civil Judge, Peshawar and after obtaining decree, he filed an execution petition before the learned Executing Court whereby, warrant of possession of decretal property was issued. In the meanwhile, respondent No.1 filed an application under section 12(2), C.P.C. before the learned trial Court for setting aside the decree dated 03.07.2019 which was dismissed vide order dated 24.10.2019. Feeling aggrieved therefrom, respondent No.1 filed a revision petition before the learned Additional District Judge-XIII/Appellate Court, Peshawar which was allowed vide order dated 28.11.2019 and remanded the case to the trial Court for recording of evidence. Feeling dissatisfied from the order dated 28.11.2019, petitioners have filed the instant constitutional petition.

3. The contention of the learned counsel for petitioners is that the record made available before the learned trial Court was enough to decide the application made by respondent under section 12(2), C.P.C. Further that no documents of ownership were attached with the application made under section 12(2), C.P.C, however, during the course of arguments, learned counsel for respondents produced an unregistered and unreadable copy of a deed on the basis of which the case of petitioners was remanded to the learned trial Court for deciding the same after recording evidence. Learned counsel also raised the question limitation in filing application under section 12(2), C.P.C. despite having knowledge.

4. On the other hand, learned counsel for the respondents contended that they he is in possession of the suit property since the time of his forefathers; that despite having knowledge, he was not made party in the case filed for partition; that there is strong evidence in shape of deed dated 18.05.1946 as well as oral evidence available with respondent and if allowed he will prove his case in the Court against the petitioners. Hence, learned counsel prayed for the dismissal of the instant petition. Arguments heard and appended record gone through.

5. Briefly stated the facts of the instant case are that petitioners Nos.1 to 8 filed a suit for declaration and partition in respect of the suit property mentioned in the heading of the plaint which was decided ex parte on 03.07.2019. On the application of petitioners, final decree was also granted to them on 18.09.2019. The grievance of the respondent in the instant case is that he is owner in possession of the suit land since the time of his forefathers and is regularly paying all the taxes to the government. The respondent claims that he rented out the suit land to different people from time to time and that he has spent millions of rupees on the development of the suit property. The petitioners while filing suit for declaration and partition have intentionally kept the proceedings secret and also have not arrayed him as a party to the suit, however, when he got the knowledge from the bailiff of the Court, he filed an application under section 12(2), C.P.C. before the learned trial Court which was dismissed without recording any evidence, however, the appeal filed by the respondent against the judgment dated 24.10.2019 was allowed and the case was remanded back to learned trial Court to record evidence before disposal of application under section 12(2), C.P.C. which judgment has been impugned here.

6. On perusal of the entire record, it appears that respondent has alleged serious allegations against the petitioners on the ground that the judgment and decree was obtained by playing fraud on the Court as despite the fact that he was in possession of the suit property since long but still he was not made a party in the case filed before the learned Civil Court. In view of the claims made by respondent, the learned Civil Court ought to have given an opportunity to the respondent to lead evidence, therefore, under the circumstances it was rightly held by learned Appellate Court that no doubt decision on application under section 12(2), C.P.C. without recording evidence is not against the law, however it depends on the facts and circumstances of each case but since specific allegations of fraud and misrepresentation have been alleged against the petitioners which warrants evidence as the fate of the application under section 12(2), C.P.C. cannot be decided without recording evidence. No material illegality has been found in the impugned judgment, therefore, warrants no interference by this Court. As far as the delay in filing application under section 12(2), C.P.C. is concerned, where no specific limitation period is provided, then the provision of Article 181 of the Limitation Act, 1908 would attract which provides three years of limitation when the right to apply accrues. The application under section 12(2), C.P.C. has been filed within three months, therefore, this arguments of learned counsel for the petitioners does not have legal basis.

7. In view of the above, by dismissing the instant writ petition, the impugned judgment dated 28.11.2019 passed by the learned Appellate Court whereby the case of respondent has been remanded to the learned trial Court for recording evidence on application is hereby maintained. SA/85/P Petition dismissed.