2016 C L C 1557

2016 C L C 1557

[Peshawar]

Before Lal Jan Khattak and Muhammad Daud Khan, JJ

MASAJIDIN and 5 others----Petitioners

Versus

Mst. DIL PAYAZ BEGUM and another----Respondents

W.P. No.423-B of 2014, decided on 19th November, 2014.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)--- Constitution of Pakistan, Art.199--- Constitutional petition---Application under S.12(2), C.P.C. on ground of fraud and collusion---Dismissal of application after acceptance by revisional court-- Validity---Speaking judgment---Duty of court---Petitioner filed application under S.12(2), C.P.C. challenging judgment and decree of trial court on ground of fraud, connivance and collusion of respondents---Trial court accepted the application and set aside the judgment and decree, but revisional court dismissed the application---Validity---Revisional court dismissed the application overlooking original issues between parties and without giving any reason for its decision---Once an application under S.12(2), C.P.C. was admitted for full hearing and the same was not dismissed in accordance with prevailing facts and circumstance of case, impugned decree had lost its effectiveness and status---Trial Court having seized of matter had to decide each and every matter arising out of ancillary thereto---Courts of law were supposed to accept or discard claim of one party or another through speaking reasoned judgment, so that parties losing the case might go with the impression that it had been decided fairly, justly and in accordance with law and justice had actually and manifestly been done---Decision of revisional court was set aside--- Constitutional petition was allowed in circumstance.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Application under S.12(2), C.P.C.---Admission of application---Effect---Once an application under S.12(2), C.P.C. was admitted for full hearing and the same was not dismissed in accordance with prevailing facts and circumstance of case, then impugned decree lost its effectiveness and status---Application under S.12(2), C.P.C. may be treated as civil suit.

(c) Administration of justice---

----Speaking judgment---Duty of court---Court of law is supposed to accept or discard claim of one party or another through speaking reasoned judgment, so that parties losing the case may go with the impression that it has been decided fairly, justly and in accordance with law and justice has been actually and manifestly done.

(d) Administration of justice---

----Adjudication of matter---Duty of court---Trial court having seized of matter has to decide each and every matter arising out of ancillary thereto.

            Latif-ur-Rehman v. Haji Farman Ullah PLD 2014 Pesh. 1 rel.

            Masood Iqbal Khattak for Petitioner.

            Ghulam Mustafa Khattak for Respondents.

            Date of hearing: 19th November, 2014.

JUDGMENT

            MUHAMMAD DAUD KHAN, J.--- Through this Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioners challenged the order/judgment of the learned. Additional District Judge, Karak dated 09.07.2014, whereby on accepting the revision of the respondents against the judgment and order dated 18.01.2013 passed by the Civil Judge-II, Karak was set-aside, resultantly the application under section 12(2), C.P.C. of the petitioner was dismissed.

2.         Briefly stated facts of the instant petition are that the petitioners challenged the judgment and decree dated 19.06.2010, passed by the learned-Civil Judge-II, Karak in Civil Suit No.120/1 of 2009 in favour of the respondent No.1 Mst: Dilpayaz Begum against Sofia Din the respondent No.2. This judgment and decree was challenged through application under section 12(2) of the C.P.C., wherein the said judgment and decree was challenged to be obtained on the basis of fraud, connivance and collusion of the respondents.

3.         The respondents were summoned. Respondent No.1 appeared and submitted written replication. On divergent of application (pleadings) the learned trial Court framed the following issues:

(i)         Whether the petitioners have got a cause of action?

(ii)        Whether the respondents obtained the decree in suit No. 120/1 of 2009 decided on 19.06.2010 was obtained on the basis of misrepresentation?

(iii)       Relief.

Additional Issues:

(i)         Whether the petition in hand is within time?

(ii)        Whether this Court has got jurisdiction to entertain the application in hand?

(iii)       Whether the decree dated 19.06.2010 was obtained on the basis of misrepresentation?

4.         Both the parties produced their evidence as they wished. On the conclusion of trial, the learned trial court after hearing of learned counsel for the parties accepted the application and impugned judgment and decree dated 19.06.2010 was set aside and the case file No.120/1 of 2009 titled Dilpayaz Begum v. Sofia Din was restored on its original Neem number and all the petitioners were impleaded as defendants and petitioners were directed to submit their written statement before the Court vide judgment and order dated 18.01.2013.

5.         Aggrieved from the judgment and order of the trial Court the respondent No.1 challenged the said judgment and order through revision petition before District Judge, Karak, who entrusted the same to the learned Additional District Judge, Banda Daud Shah (Camp Court) at Karak. After hearing the learned counsel for the parties the learned revisional Court by accepting the revision petition of the respondents, set aside the judgment and order of the learned trial court and dismissed the application of the petitioners vide its judgment and order dated 09.7.2014.

6.         Arguments of the learned counsel for the parties heard and available record perused.

7.         It appears from the perusal of the impugned judgment of the revisional Court that the learned revisional Court mentioned the issues which are not the issues between the parties in the instant case i.e. case No.6/12(2) of the application but discussed the issues of another case which are not lis between the instant parties. It clearly shows that the learned revisional Court, while deciding the matter, the controvertial issues of the case were not before the learned court. Furthermore not only original issues were over-cited by the revisional Court but also not settled the point of determination between the parties to decide the matter. Perusal of the impugned judgment reveals that the learned revision Court set aside the judgment and order of the trial Court and dismissed the application without giving any reason. It is by now settled law, that an application under section 12(2), C.P.C., 1908 may be treated as a suit, once such application is admitted for full hearing and would not be dismissed summarily in accordance with prevailing facts and circumstances of the case, then the impugned decree loses its effectiveness or status.

8.         The Civil Court seized of the matter, thereafter has to decide each and every matter arising out of the ancillary there too. The main subject matter under litigation, according to established principle of justice reliance can be taken from judgment of this Court in case titled 'Latif-ur-Rehman v. Haji Farman Ullah reported in (PLD 2014 Peshawar 01)."

9.         Needless to say that the Courts of law are supposed to accept or discard the claim of one party or another through a speaking reasons judgment. So that the parties losing the case may go with the impression that it was decided fairly, justly and in accordance with law and that justice was actually and manifestly done.

10.       So in the light of above observation the judgment and order of the learned revisional Court is against law and without jurisdiction and liable to be set-aside.

11.       What has been discussed above, the impugned judgment of the revisional Court is set aside and remand back the case to the revisional Court with directions to decide afresh in accordance with law.

SL/250/P                                                                                             Case remanded.