PLJ 2023 Lahore (Note) 4
Civil Procedure Code, 1908 (V of 1908)--
----O.XII R. 6--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Rectification of record--Recording of statement of defendant for decreeing suit in absence of appellant--Filing of application for decision of suit on basis of statement--Acceptance of application and suit was decreed--Unheard condemnation--Mandate of law--Challenge to--Trial Court without adhering to facts and objections raised by appellant Authority proceeded to get rid of lis sunmarily without giving right of hearing to appellant which is not mandate of law because law demands providing of fair opportunity to each and every litigant--Appellant has been condemned unheard despite the fact that many factual as well as legal objections have been raised in the written statement and written reply to the application under Order XII, Rule 6, C.P.C.--Appeal allowed.
[Para 3] A
M/s. Tariq Masood, Saad Tariq and Hassan Tariq, Advocates for Appellants.
Mian Muhammad Kashif, Advocate for Respondents No. 1, 2 & 4.
Mr. Muhammad Sarfraz Nawaz, Advocate for Respondent No. 3.
Date of hearing: 10.10.2022.
PLJ 2023 Lahore (Note) 4
Present: Shahid Bilal Hassan and Muhammad Raza Qureshi, JJ.
DEFENCE HOUSING AUTHORITY, LAHORE through Secretary Lahore--Appellant
versus
NAVEED AKRAM and others--Respondents
R.F.A. No. 1215 of 2022, heard on 10.10.2022.
Judgment
Shahid Bilal Hassan, J.--Succinctly, a suit titled “Naveed Akram and another v. Defence Housing Authority Lahore Cantt. and others” was instituted by a special attorney purportedly acting on behalf of the plaintiffs while claiming a declaratory decree to the effect that the plaintiffs and pro-forma defendant were the exclusive and absolute owners of 94-C with a direction to the DHA to rectify its records reflecting the plaintiffs and pro-forma defendant as exclusive and absolute owners of the suit property. The suit was contested by the present appellant/defendant, who submitted written statement by raising legal and factual objections. Allegedly, on 18.09.2018, conceding written statement signed by Naeem Akhtar (Defendant No. 4) statedly residing in Portugal at the relevant time was placed on record, signatures whereof allegedly put by him, however, were not countersigned or attested by the counselor or by any other officer officially authorized in this regard in the concerned Embassy. Subsequently the written statement dated 22.11.2018 purportedly signed by Defendants No. 2(i) and 2(ii) was also submitted with the prayer that the suit might be decreed as prayed for. On 28.01.2019, a number of issues were framed by the learned trial Court and suit was fixed for evidence of the plaintiffs. On 2.04.2019, statement on oath of Defendant No. 2(i) in absence of the appellant Authority was recorded while pacing on record certain documents stating therein that he had no objection in case the suit was decreed in favour of the plaintiffs and Defendant No. 4 as prayed for. The suit adjourned for cross- examination as well as for production of plaintiffs’ evidence for 04.05.2019. On 04.05.2019, the appellant Authority filed an application under Section 151, 153 of CPC for disregarding and overlooking the above said statement got recorded by Defendant No. 2(2) but the same application was dismissed on 13.01.2020. On 09.10.2020, absolute last opportunity was granted to the plaintiffs for production of their evidence on 27.10.2010. On the said date, an application under Order XII, Rule 6, Code of Civil Procedure, 1908 was filed by the special attorney of the plaintiffs. The appellant submitted written reply of the said application while raising a number of legal and factual objections. On 13.10.2021, the learned trial Court by accepting the said application under Order XII, Rule 6, CPC decreed the suit with the observation that the plaintiffs and Defendant No. 4 are owners of Plot No. 94-C DHA Phase-1, Lahore while directing the appellant Authority to correct its record about the said Plot, accordingly. Hence, the instant appeal.
2. Heard.
3. We have minutely scanned and gone through the record especially the written statement and written reply to the application under Order XII, Rule 6, Code of Civil Procedure, 1908, submitted by the appellant Authority and have reached to a conclusion that many legal as well as factual objections including maintainability of suit, limitation, principle of acquiescence, estoppel, waiver and laches, have been raised by the appellant/Authority. Moreover, objection of collusion inter se the plaintiffs and the Defendant No. 4 has also been agitated while submitting written reply to the application filed under Order XII, Rule 6, Code of Civil Procedure, 1908. However, the learned trial Court without adhering to the said facts and objections raised by the appellant Authority proceeded to get rid of the lis sunmarily without giving right of hearing to the appellant/Authority, which is not the mandate of law because law demands providing of fair opportunity to each and every litigant. The appellant/Authority has been condemned unheard despite the fact that many factual as well as legal objections have been raised in the written statement and written reply to the application under Order XII, Rule 6, C.P.C. The learned trial Court has wrongly construed the provisions of Rule 6 of Order XII, CPC, because the appellant/Authority was contesting party and it did not make any admission germane to claim of the plaintiffs. Therefore, the impugned order and decree cannot be allowed to hold field being not sustainable in the eye of law. As such, the appeal in hand is allowed, impugned order is set aside and case is remanded to the learned trial Court with a direction to decide the application under Order XII, Rule 6, Code of Civil Procedure, 1908 after hearing the appellant/Authority and considering the objections raised in the written reply to the said application submitted by the appellant. The adversaries are directed to appear before the learned trial Court on 24.10.2022, positively.
(Y.A.) Appeal allowed
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