2005 PLP 74 (YLR)

Impugned herein is the judgment of the learned District Judge, Charsadda who while accepting appeal of the respondent set aside the judgment dated 4-5-1999 passed by learned Civil Judge, Charsadda.

2. Precisely, facts of the case are that respondent instituted a suit on 12-4-1979 for decree of declaration which was decreed on 7-5-1979 on the basis of the report of the Local Commission appointed for recording the statement of the petitioner. This decree was then challenged by the petitioner through a petition under section 12(2), C.P.C. but before the filing of the petition the decree-holder applied for review of the judgment and decree already granted by seeking decree for additional area based on a separate claim and cause of action and the learned trial Court allowed the review petition on 11-6-1979 without issuing notice to the petitioner. Both these orders were impugned on 22-9-1990 through the above petition having been obtained through fraud, misrepresentation as well as collusion. After getting reply from the respondent, issues were framed, trial was held and at the conclusion the petition was accepted, the judgment and decree dated 7-5-1979 passed in case No. 125/1 of 1979 and the subsequent order y in review dated 11-6-1979 were set aside and Suit No.125/1 was restored on its original number for trial. The above judgment and decree were then challenged in appeal and the learned District Judge set aside the same through the impugned judgment and decree.

3. We have heard the learned counsel for the parties at length. 4. sLearned counsel for the respondents fairly conceded that the subsequent order dated 11-6-1979 passed on review petition was not in accord with law because it was passed on the back of the petitioner, however, he maintained that the judgment and decree passed in the main suit were based on the admission of the petitioner recorded by the Local Commissioner to which no exception could be taken.

5. From the evidence on record, pleadings of the parties and the report of the Local Commission, one fact is established beyond doubt, the vital one in the entire case. Suit No. 125/1 was instituted on 22-4-1979 against the petitioner and on 5-5-1979 a Local Commission, namely, Khalil-ur-Rehman, Advocate was appointed for recording the statement of the petitioner/defendant. It is beyond imagination that on the same date file was obtained from the Court and the Local Commission has shown himself to have traveled from Charsadda to Peshawar and then Hayatabad, recorded the statement of the petitioner and then rushed back to the trial Court and handed over the case file along with the statement of the petitioner. In this way the whole exercise carried out bespeaks volumes about collusion and concealment because there was no need to proceed with a bullet speed, the conduct displayed by the respondent/plaintiff and the Local Commission is unnatural and unusual. It was humanly impossible to complete the entire process within an hour or two moreso, when there were no compelling reasons or direction of the Court to do so. In the case of Pardanasheen ladies the law has laid considerable emphasis that while dealing with them whether taking their statements or striking bargains wherein their vested rights are likely to be disturbed, much care and caution is to be observed and the entire process/transaction must appear to be transparent one because they belong to a special and protected class as the statutory law has extended enough safeguards in this regard. None of those conditions and essential requirements of law were complied with in the instant case rather the action taken with an unbelievable speed makes the whole I exercise doubtful thus, collusion and commission of foul play could not be excluded.

6. Apart from the above fact, the Local Commission was not examined on oath to test his credibility and veracity who had allegedly recorded the statement of the petitioner. Above all, the trial Court has extended favour in disregard of the provision of C.P.C. and the fundamental principle of law and justice when it accepted a review petition of the respondent wherein a distinct claim and cause of action was put up before it. The procedure adopted was ex parte and in utter violation of principle of natural justice, lack of jurisdiction apart because by then it had become "functus officio". For review of a judgment and decree stringent essential conditions have been laid down by the law itself thus, as stated above, the learned counsel for the respondents rightly conceded on the said point being an order not supported by law. The petitioner has squarely denied to have given any statement to the said Local Commission when she appeared as P.W.9 and alleged that fraud has been committed upon her taking undue benefit of her sex. She has also stated that the respondent is her first cousin. In reply to a question she has further alleged that she did not know as to who was produced before the Local Commission for recording the statement. This assertion was not further challenged through cross examination. It is by now settled principle of law that a decree based on compromise has no better status in law than an agreement between the parties albeit it bears the seal of the Court. In this case the alleged compromise was not effected inside the Court but the alleged consent was obtained through Local Commission. Now when the petitioner is a Pardanasheen lady and the respondent is closely related to her, he was under a heavy burden to prove that the agreement/compromise decree was obtained in a fair manner without practicing fraud but he has failed to discharge this burden in I the manner required by the law. The petitioner was required to simply deny the transaction which she did and her statement on all material particulars is consistent one which could not be shattered through cross-examination thus, from the evidence on record it is well-established that she has not consented to the decree and the alleged statement attributed to her was the result of fraud and misrepresentation/ collusion, the , legal errors and the jurisdictional infirmities from which the impugned judgment and decree passed I in Civil Suit No. 125/1 suffers is apart.

7. We have gone through the judgment of the learned trial Court accepting the petition under section 12(2), C.P.C. wherein all the above points were attended to fairly and the appraisal of evidence has been made strictly in accordance with law and while recording findings it has given sound and cogent reasons for the same. No illegality whatsoever appears to have been committed by the learned trial Court, therefore, the learned appeal Court was having no justification to set aside the findings recorded by the trial Court. In these circumstances we are of the firm view that the impugned judgment of the learned appeal Court is based on misappraisal of evidence and misapplication of law as well, the same is, therefore, not sustainable as it has caused serious miscarriage of justice. For the above stated reasons, this petition is accepted, the impugned judgment dated 6-12-1999 of the learned District Judge is set aside and that of the learned trial Court dated 4-5-1999 is restored. The Original Suit No. 125/1 shall be deemed to be pending before the trial Court and the parties be given fair chance of trial, however, being an old case the trial be completed within a shortest possible period but not later than nine months. Petition accepted accordingly. H.B.T./233/P