2013 M L D 1309

2013 M L D 1309

[Peshawar]

Before Mazhar Alam Khan Miankhel and Musarrat Hilal, JJ

MUHAMMAD KAZIM KHAN KHATTAK and another---Petitioners

Versus

MEWA KHAN and 3 others---Respondents

Writ Petition No.999 of 2010, decided on 4th April, 2013.

Civil Procedure Code (V of 1908)---

---O. XIV, R, 1, O. XVIII, R. 2 & S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Framing of issues---Recording of evidence---Averments made in the application under S.12(2), C.P.C. showed that none of the same could be decided without recording of evidence---Matter being factual in nature and, in the eye of law, could not be decided summarily---Application containing allegations of fraud could never be decided without recording of evidence---Constitutional petition was allowed and Trial Court was directed to frame issues and provide ample opportunity to both the parties to adduce their evidence and then decide the case in accordance with law.

            Hamid Hussain Khan for Petitioners.

            Altaf Ahmad for Respondents.

ORDER

            MAZHAR ALAM KHAN MIANKHEL, J.---Muhammad Kazim Khan Khattak etc., petitioners herein, through the instant constitutional petition, have questioned the judgment/order dated 19-1-2010 of the learned Additional District Judge-IV, whereby, she dismissed their revision petition and maintained the judgment/order dated 26-1-2009.

2.         The main contention of the learned counsel for the petitioners was that when respondent No.1, through fraud and misrepresentation, obtained ex parte decree against respondent No.2, whose whereabouts are not known since long, the petitioners herein being sons of the latter, after getting knowledge of the same, have the legal right to challenge such type of decree by filing an application under section 12(2) of the C.P.C., but the learned Trial Court, without appreciating these essential aspects of the case knocked out them by dismissing their application only on the flimsy ground of maintainability. The learned counsel further contended that how respondent No.1 could file a suit by claiming ownership from the year, 1996 on the strength of Deed, that too, when at the relevant time, respondent No.2 was not the owner of the property in dispute rather had transferred the same in favour of his wife in the year, 1981, who further transferred the same in favour of the present petitioners being her sons in the year, 1986. The learned counsel further contended that since the learned Trial Court by dismissing the application under section 12(2) of the C.P.C. of the petitioners, has not only violated the principles, laid down by the superior Courts of the country in this regard but also stampeding the relevant law and that learned Revisional Court also erred in law by dismissing their revision petition and, therefore, the judgments/orders of both the Courts below being against the law and facts are liable to be set at naught. In support of his contentions, the learned counsel placed reliance on cases of Muhammad Akram Malik v. Dr. Ghulam Rabbani (PLD 2006 SC 773); Mrs. Anis Haider and  others v. S. Amir Haider and others (2008 SCMR 236); Mst. Shahana Ali v. Syed Muhammad Haris Jaffari and others (PLD 2010 Kar. 366) and Pir Muhammad  Azam v. Pir Azizullah and others (2011  CLC (Pesh) 355).

3.         As against that, the learned counsel appearing on behalf of the respondents by defending the judgments/orders of both the Courts below submitted that the decree couldn't be set aside only on the grounds mentioned in the application, because all  these points pertained to the merits of the case couldn't be decided in the limited jurisdiction of section 12(2) of the C.P.C. The learned counsel next submitted that though the petitioners are allegedly residing abroad but, the power-of-attorney, present on the file, doesn't bear seal or signature of the embassy. The learned counsel further submitted that petitioner No.1 also filed an ejectment petition against one Rahim Gul in respect of the suit shop in the proper forum but his application was turned down because he failed to establish the relationship of landlord and tenant, which shows that none of the petitioners was owner of the suit property and rather, they, by fraud want to grab it from respondent No.1, who is, apparently, its lawful owner. The learned counsel by concluding his arguments further submitted that since the plea of the petitioners is based on concealment of facts, this writ petition is liable to be dismissed with costs. In support of his submission, the learned counsel placed reliance on the judgments of Muhammad Yaseen Siddiqui v. Tahseen Jawaid Siddiqui (2003 MLD (Kar.) 319); Mirza Allah Ditta alias Mirza Javed Akhtar v. Amna Bibi and others (2005 CLC (Lah.) 1478 and Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another (PLD 2008 SC 591).

4.         We have gone through the available record carefully and considered the submissions made by the learned counsel for both the parties.

5.         The record would reveal that Mewa Khan, respondent No.1 filed a declaratory suit qua shop No.16, on the basis of Deed dated 14-5-1996 against respondent No.2 herein, who was summoned but, due to his non-appearance before the Court, the ex parte proceedings were initiated and, after recording evidence in his absence, an ex parte decree was passed in favour of the former vide judgment and decree dated 27-9-2004. Thereafter, the present petitioners filed an application under section 12(2) of the C.P.C. against respondent No. 1  for  setting  aside  the  aforesaid  ex parte decree, which was contested by the latter and, after hearing  both  the  side, the same was dismissed by the learned Trial Court  on  26-1-2009, without framing issues and recording evidence. Feeling aggrieved, the petitioners herein filed Revision Petition before the learned Revisional Court, which also met the same fate vide judgment / order dated 19-1-2010. Not contented therewith, the petitioners have come to this Court through the instant writ petition.

6.         A perusal of the averments made in the application under  section 12(2) of the C.P.C., filed by the petitioners herein, shows that none of the same can be decided without recording of evidence so as to prove and establish their stance, that too, when the matter being factual in nature and, in the eye of law, can't be decided summarily, especially when, an application/petition containing serious allegations of fraud can never be decided without recording of evidence. Even otherwise, the Deed dated 14-5-1996, on which, the respondent has obtained ex parte decree is an unregistered one and, under the law, the petitioners herein have a legal right to rebut it by  producing their evidence. Since the petitioners were not given an opportunity to prove their stance by producing evidence, we, wouldn't deem it appropriate to maintain such like order, which was decided on technicality and not on merits. Therefore, we, at this juncture, have left with no option but to allow this writ petition by setting aside the impugned judgments orders of both the courts below.

7.         For the reasons discussed above, we admit and allow this writ petition, set aside the impugned judgments/orders of both the Courts below, treating the application under section 12(2) of the C.P.C. as pending, and direct the learned Trial Court to frame proper issues on the said petition and provide an ample opportunity to both the parties to adduce their evidence in support of their stance and thereafter decide the case after hearing both the parties in accordance with law.

AG/192/P                                                                                            Case remanded.