PLJ 2023 Lahore (Note) 162
Present: Muhammad Ameer Bhatti, C.J.
GHULAM ULLAH Deceased through L.Rs.--Petitioners
versus
GHULAM HASSAN and others--Respondents
C.R. No. 3788 of 2016, heard on 3.11.2021.
Civil Procedure Code, 1908 (V of 1908)--
----S.12(2)--Constitution of Pakistan, 1973, Art. 10A--Dismissal of application for setting aside order during pendency of appeal--Compromise--Non-framing of issue regarding application--Challenge to--No fair trial--It is well settled law that application under Section 12(2), C.P.C., if alleges fraud and misrepresentation with particulars, needs framing of issues and recording of evidence--For determination of fraud and misrepresentation not only framing of issues was essential but recording of evidence was also obligatory in order to provide opportunity to parties to prove factual dispute elaborately inserted in application under Section 12(2), C.P.C. as envisaged under Article 10-A of Constitution which stipulates that while deciding matter fair trial and due process shall be granted to litigant--Judgment whereby petitioners’ application under Section 12(2), C.P.C. was dismissed summarily, is hereby set-aside, as a result whereof said application, filed by petitioners, shall be deemed to be pending before District Judge for re-adjudication of same after framing issue(s) and recording evidence of parties--Civil revision allowed. [Para 6, 7 & 8] A, B & C
PLD 2019 SC 745, PLD 2020 SC 334, 2020 SCMR 293,
2019 SCMR 1106 & 2012 SCMR 1235.
M/s. Muhammad Mumtaz Faridi, Qamar Hayat, Waheed Ashraf Bhatti, Kashif Bashir and Zahir Abbas, Advocates for Petitioners.
Mr. Azmeer Javed Syed, Advocate for Respondents.
Date of hearing: 3.11.2021.
Judgment
This revision petition is directed against the judgment dated 14.04.2016, whereby the learned Additional District Judge-I, Pakpattan, dismissed the application under Section 12(2), C.P.C. filed by the petitioners, for setting-aside the order and decree dated 06.09.2013, which was allegedly obtained by the respondents on the basis of compromise.
2. The brief facts of the case are that during pendency of appeal filed by the respondents against the judgment and decree of the learned trial Court, on the basis of settlement of the parties, a referee was appointed and accordingly the appeal was decided in terms of the conclusion drawn by the referee. This order was challenged by the present petitioners through application under Section 12(2), C.P.C. alleging therein that on the statement of Advocate the referee was appointed whereas they never appointed Syed Iftikhar Hussain Shah, Advocate as their counsel nor any Power of Attorney was executed in his favour. The learned first appellate Court dismissed the said application summarily without framing the issue(s) and recording evidence holding that the Power of Attorney available on record negates the petitioners’ assertion.
3. The contention of the learned counsel for the petitioners is that the petitioners have not been provided any opportunity of hearing in terms of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, as well as Section 14 of the General Clauses Act stipulating/giving of fair trial to all the parties, inasmuch as the learned first appellate Court has neither framed the issue(s) nor any opportunity has been provided to substantiate the contents elaborately mentioned in the application, therefore, the judgment impugned is unsustainable in the eye of law. It is further contended that the alleged Power of Attorney does not reflect any sign or stamp of the learned Court; therefore, it was a case wherein the parties ought to have been provided an opportunity to lead the evidence.
4. On the other hand, the learned counsel for the respondents has contended that Ghulam Ullah, father of the present applicants, had died during pendency of the appeal, as a result whereof the present applicants were impleaded as his legal heirs by Syed Iftikhar Hussain Shah, Advocate, by filing Power of Attorney on their behalf, who made statement on behalf of all the respondents, therefore, the learned Court has not committed any illegality or irregularity; hence, this petition is not maintainable as the petitioners’ application has rightly been dismissed leaving no room for this Court to interfere while exercising the power provided under Section 115, C.P.C.
5. I have heard learned counsel for the parties and gone through the record.
6. It is well settled law that the application under Section 12(2), C.P.C., if alleges fraud and misrepresentation with particulars, needs framing of issues and recording of evidence. In this context, I am fortified from the ratio decidendi laid down by this Court in “Muhammad Altaf v. District Judge and 3 others” (2016 YLR 1191 (Lahore) wherein it was held that:
“Although it is not always necessary to frame the issues in an application under Section 12(2), C.P.C, but it does not mean that issues in such like application should not be framed at all. If serious questions of facts and law are involved in the application, which could not be decided without evidence, then issues should be framed, evidence should be recorded and then the matte should be decided”.
In “Lahore Development Authority through Director General v. Arif Manzoor Qureshi and others” (2006 SCMR 1530) it was held that:
“From the very nature of the allegations of the petitioner summary disposal of the application under Section 12(2), C.P.C. was not justified. In the facts and circumstances of the case, it was necessary for the trial Court to have framed necessary issues and recorded evidence of the parties particularly when the judgment and decree, dated 22-7-1998 had also been passed without recording evidence of the parties”.
I am also fortified with the dictum laid down in “Farida Zafar Zehri and others v. Feroza Khanum and others” (2007 SCMR 726) wherein it was held as under:
“Thus; in our considered opinion the learned Single Judge in the High Court very appropriately in view of the respective pleadings of the parties concluded for disposal of the application after framing of the issues and then to provide reasonable opportunity to the parties to produce evidence. Viewed in this context the order passed by the learned trial Court dismissing the application was appropriately interfered with by the learned Judge in the High Court as no evidence could have been even produced, in absence of issues which in the given circumstances of the case essentially to have been framed and thus, the said order of the trial Court patently appeared to be oppressive”.
In Muhammad Akram Malik v. Dr. Ghulam Rabbani and others (PLD 2006 SC 773), the Hon’ble Supreme Court enunciated as under:
“There is no cavil with the proposition that an application preferred under Section 12(2), C.P.C. could have been summarily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out, in such an eventuality such application should have not been dismissed summarily and without recording the evidence”.
“Warraich Zarai Corporation v. F.M.C. United (Pvt.), Ltd.” (2006 SCMR 531) is also referred.
7. I have examined the contents of the application in light of the law laid down, referred ibid, and have no doubt in my mind that disputed questions of facts relating to misrepresentation and fraud have been alleged in the application elaborating that learned counsel who agreed to appoint Referee for obtaining his decision regarding matter pending before the Court and as consequence whereof the decree passed on the basis of that decision of the Referee was without their consent as neither they engaged that learned counsel nor any Power of Attorney was signed or executed in his favour, therefore, whatever the statement made by the learned counsel on their behalf was without any lawful authority, necessitating to frame issues and record evidence but on the other hand the learned Court dismissed the application in a casual and cursory manner. It is true that for determination of such fraud and misrepresentation not only the framing of issues was essential but recording of evidence was also obligatory in order to provide the opportunity to the parties to prove the factual dispute elaborately inserted in the application under Section 12(2), C.P.C. as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which stipulates that while deciding the matter fair trial and due process shall be granted to the litigant.
I am fortified with the law laid down by honourable Supreme Court of Pakistan in case reported as Altaf Ibrahim Qureshi and another v. Aalmlog Ittehad and others (PLD 2019 Supreme Court 745), relevant para is expedient to be reproduced herein below:
“The right of hearing of a party to a lis is one of the fundamental principles of our jurisprudence which is guaranteed by Article 10-A of the Constitution in its assurance of a “fair trial and due process” to a litigant.”
Reliance regarding concept of fair trial guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, is also placed on the dictums laid down in Muhammad Bashir v. Rukhsar and others (PLD 2020 Supreme Court 334), Naseer Khan v. Said Qadeem and others (2020 SCMR 293), Mrs. Shagufta Shaheen and others v. The State through D.G. NAB, Khyber Pakhtunkhwa and another (2019 SCMR 1106) and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another (2012 SCMR 1235).
8. For what has been stated above, the judgment dated 14.4.2016, whereby petitioners’ application under Section 12(2), C.P.C. was dismissed summarily, is hereby set-aside, as a result whereof the said application, filed by the petitioners, shall be deemed to be pending before the learned District Judge for re-adjudication of the same after framing issue(s) and recording evidence of the parties. The parties are directed to appear before the learned District Judge, Pakpattan, on 17.11.2021, who shall take on this matter either himself or entrust it to any learned Addl. District Judge for adjudication.
9. This petition stands accepted and case remanded.
(Y.A.) Petition accepted
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