2017 M L D 191
2017 M L D 191
[Peshawar (D.I. Khan Bench)]
Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ
NEK MUHAMMAD---Petitioner
Versus
ALLAH DEWAYA and others---Respondents
W.P. No.398-D of 2012, decided on 15th December, 2015.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application under S.12(2), C.P.C.---Compromise decree---Fraud and misrepresentation---Decree, setting aside of---Scope---Suit was decreed on the statement of special attorney of defendants---Validity---Suit was instituted on 30-10-1972 and Trial Court posted it on the same date for 18-11-1972---Neither any application for summoning the case file from the diary of 18-11-1973 was filed nor any order existed that case filed was summoned on the request of either of the parties for adjudication on the basis of compromise---However on 14-11-1972 statement of special attorney for defendants was recorded and compromise decree was passed---Held, trial court should have framed issue and record evidence qua the authenticity of power of attorney and statement recorded with regard to compromise---Inquiry should have been made as to why record was summoned on 14-11-1972---Impugned judgments passed by the courts below were set aside and case was remanded for decision afresh---Constitutional petition was allowed in circumstances.
Abdul Qayum Qureshi for Petitioner.
Rustam Khan Kundi, Ghulam Hur Khan Baloch, Muhammad Wahid Anjum and Salah-ud-Din Khan Gandapur for Respondents.
Date of hearing: 15th December, 2015.
JUDGMENT
MUHAMMAD GHAZANFAR KHAN, J.---Through the instant constitutional petition, the petitioner has called in question the judgment dated 23.02.2012 rendered by learned Additional District Judge-V, D.I.Khan, whereby the revision petition filed by petitioner against the judgment and decree dated 23.12.2010 of learned Civil Judge-VIII, D.I.Khan was dismissed.
2. In essence, respondents Nos.1 and 2 filed a suit for declaration against Mohammad Hayat, father of petitioner which was decreed on 14.11.1972 on the statement of one Mohammad Ibrahim who posed himself to be special attorney of defendants therein.
3. On 17.4.2004, the present petitioner filed an application under section 12(2) C.P.C for setting aside the decree dated 14.11.1972. The application was contested and after recording evidence of the parties and hearing the arguments, the learned Civil Judge-VIII, D.I.Khan dismissed the application vide judgment dated 23.12.2010.
4. Dissatisfied with the judgment dated 23.12.2010, the petitioner filed a revision petition which was also dismissed by learned Additional District Judge-V, D.I.Khan vide impugned judgment dated 23.02.2012.
5. The learned counsel for petitioner argued that the Courts below have dismissed the application of petitioner moved under section 12(2), C.P.C. which amounts to skipping over the jurisdiction vested in Courts below; that the fraud and misrepresentation was floating on the record, but even then the Courts below have dismissed the application of petitioner under section 12(2), C.P.C.
6. On the other hand, learned counsel for respondents argued that the lawful attorney of the petitioner recorded his statement before the competent Court of law that the parties have patched up the matter and the defendants have got no objection on passage of decree in favour of plaintiff.
7. We have heard the arguments of learned counsel for the parties and have gone through the available record.
8. The perusal of order sheets reveals that the case was instituted on 30.10.1972 and on the same date, the learned trial Court posted it for 18.11.1972. Meanwhile, neither there is an application for summoning the case file from the diary of 18.11.1972, nor there is any order sheet intervening that this case file was summoned on the request of either of the parties for adjudication on the basis of compromise. However, order sheet No.4 dated 14.11.1972 reveals that the counsel for plaintiff and special attorney for defendants were present, the plaintiff presented an application for compromise which was accepted, statement of special attorney for defendants was recorded and on the same date, judgment and decree was passed. Record further transpires that the special attorney happens to be the real son of plaintiff. In such scenario, it was incumbent on the Courts below to frame proper issues and record evidence qua the authenticity of power of attorney and statement recorded regarding compromise. Secondly, when the order sheets are silent about summoning of record of the case from the diary of 18.11.1972 for its decision on the basis of compromise on 14.11.1972, then this inquiry should also have been made that how and why this record was summoned. All these points coupled with the factum of establishing misrepresentation, fraud or jurisdictional defect require thorough probe which is lacking in the case.
9. For the reasons mentioned above, this petition is accepted, the impugned judgments of the Courts below are set aside and the case is remanded to the learned trial Court for its decision afresh in above terms.
ZC/156/P Case remanded.
[Peshawar (D.I. Khan Bench)]
Before Ikramullah Khan and Muhammad Ghazanfar Khan, JJ
NEK MUHAMMAD---Petitioner
Versus
ALLAH DEWAYA and others---Respondents
W.P. No.398-D of 2012, decided on 15th December, 2015.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Application under S.12(2), C.P.C.---Compromise decree---Fraud and misrepresentation---Decree, setting aside of---Scope---Suit was decreed on the statement of special attorney of defendants---Validity---Suit was instituted on 30-10-1972 and Trial Court posted it on the same date for 18-11-1972---Neither any application for summoning the case file from the diary of 18-11-1973 was filed nor any order existed that case filed was summoned on the request of either of the parties for adjudication on the basis of compromise---However on 14-11-1972 statement of special attorney for defendants was recorded and compromise decree was passed---Held, trial court should have framed issue and record evidence qua the authenticity of power of attorney and statement recorded with regard to compromise---Inquiry should have been made as to why record was summoned on 14-11-1972---Impugned judgments passed by the courts below were set aside and case was remanded for decision afresh---Constitutional petition was allowed in circumstances.
Abdul Qayum Qureshi for Petitioner.
Rustam Khan Kundi, Ghulam Hur Khan Baloch, Muhammad Wahid Anjum and Salah-ud-Din Khan Gandapur for Respondents.
Date of hearing: 15th December, 2015.
JUDGMENT
MUHAMMAD GHAZANFAR KHAN, J.---Through the instant constitutional petition, the petitioner has called in question the judgment dated 23.02.2012 rendered by learned Additional District Judge-V, D.I.Khan, whereby the revision petition filed by petitioner against the judgment and decree dated 23.12.2010 of learned Civil Judge-VIII, D.I.Khan was dismissed.
2. In essence, respondents Nos.1 and 2 filed a suit for declaration against Mohammad Hayat, father of petitioner which was decreed on 14.11.1972 on the statement of one Mohammad Ibrahim who posed himself to be special attorney of defendants therein.
3. On 17.4.2004, the present petitioner filed an application under section 12(2) C.P.C for setting aside the decree dated 14.11.1972. The application was contested and after recording evidence of the parties and hearing the arguments, the learned Civil Judge-VIII, D.I.Khan dismissed the application vide judgment dated 23.12.2010.
4. Dissatisfied with the judgment dated 23.12.2010, the petitioner filed a revision petition which was also dismissed by learned Additional District Judge-V, D.I.Khan vide impugned judgment dated 23.02.2012.
5. The learned counsel for petitioner argued that the Courts below have dismissed the application of petitioner moved under section 12(2), C.P.C. which amounts to skipping over the jurisdiction vested in Courts below; that the fraud and misrepresentation was floating on the record, but even then the Courts below have dismissed the application of petitioner under section 12(2), C.P.C.
6. On the other hand, learned counsel for respondents argued that the lawful attorney of the petitioner recorded his statement before the competent Court of law that the parties have patched up the matter and the defendants have got no objection on passage of decree in favour of plaintiff.
7. We have heard the arguments of learned counsel for the parties and have gone through the available record.
8. The perusal of order sheets reveals that the case was instituted on 30.10.1972 and on the same date, the learned trial Court posted it for 18.11.1972. Meanwhile, neither there is an application for summoning the case file from the diary of 18.11.1972, nor there is any order sheet intervening that this case file was summoned on the request of either of the parties for adjudication on the basis of compromise. However, order sheet No.4 dated 14.11.1972 reveals that the counsel for plaintiff and special attorney for defendants were present, the plaintiff presented an application for compromise which was accepted, statement of special attorney for defendants was recorded and on the same date, judgment and decree was passed. Record further transpires that the special attorney happens to be the real son of plaintiff. In such scenario, it was incumbent on the Courts below to frame proper issues and record evidence qua the authenticity of power of attorney and statement recorded regarding compromise. Secondly, when the order sheets are silent about summoning of record of the case from the diary of 18.11.1972 for its decision on the basis of compromise on 14.11.1972, then this inquiry should also have been made that how and why this record was summoned. All these points coupled with the factum of establishing misrepresentation, fraud or jurisdictional defect require thorough probe which is lacking in the case.
9. For the reasons mentioned above, this petition is accepted, the impugned judgments of the Courts below are set aside and the case is remanded to the learned trial Court for its decision afresh in above terms.
ZC/156/P Case remanded.
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