Mr. Justice Amin-ud-Din Khan in his judgment has decided the issue regarding necessary ingredients of 12(2) application and judicial consideration of other objections in Writ Petition No. 4665 of 2006.
1. Through this writ petition petitioners have challenged the judgment/order dated 31.01.2006 passed by the learned Additional District Judge, Sialkot whereby revision petition filed by the respondents was accepted and the order dated 20.10.2005 passed by learned Civil Judge Class II, Sialkot was set aside whereby application under section 12(2) of the CPC filed by the petitioners was accepted.
2. Brief facts of the case are that plaintiff/respondent No. 1 filed a suit for declaration with regard to the land measuring 38 kanals 4 marlas with the assertion that through oral sale the suit property has been transferred by the three defendants in their favour and decree for declaration of title was sought on the ground that the property is situated outside the municipal limits, therefore, Registration Act is not applicable and the mutation is to be sanctioned in their favour. As per record of the learned trial court on 9.5.1996 all the three defendants appeared before the Court in person as well as their counsel Mr. Aziz Ahmad Khan, Advocate appeared and got recorded a conceding statement and the learned trial court decreed the suit on the basis of conceding statement of the defendants on the same day i.e. 9.5.1996. On 23.4.1999 the defendants filed an application under section 12(2) of the CPC against the plaintiff of the suit as well as Mr. Aziz Ahmad Khan, Advocate who appeared on their behalf in the suit. The grounds mentioned in the application were that a forged and fictitious, based upon fraud suit was filed title of which is “Pakistan Cargo Services (Pvt) Limited versus Zahur Ahmad etc.” It is contended in the application that the fictitious and based upon fraud suit was got decreed within a period of 14 days with the connivance of the Court on 9.5.1996.
The grounds mentioned in the application are that Zahoor Ahmad was never appointed Attorney by the other defendants, the suit was fictitious and fraudulent and sale in favour of plaintiff has been denied. It is mentioned that in the fictitious and based upon fraud suit no summons were received by the defendants/applicants. It is further mentioned that after procuring the illegal decree dated 9.5.1996 respondent No. 1/ plaintiff got sanctioned mutation on 6.7.1998 with regard to the suit property in his favour. It is further pleaded that after procuring a decree fictitiously decree-holder got filed a suit for pre-emption against it by Abdul Razzaq son of Nazar Muhammad Lumberdar with whom applicants-defendants have a longstanding litigation as well as rivalry but in the same breath it is stated that petitioners came to know about filing of pre-emption suit through children of said Abdul Razzaq. It is further pleaded that mutation in favour of plaintiff-respondent No. 1 on the basis of fraudulent decree is No. 123 attested on 6.7.1998, it is not binding upon the rights of the applicants. It is further stated that when they came to know about the attestation of mutation the plaintiff-respondent No. 1 was asked to get the mutation reversed in favour of the applicants as they are poor persons and cannot afford the litigation expenses but when refused first time on 25.4.1996 and last time one week before filing of the application, therefore, the application.
3. Reply was filed. In reply case of the plaintiff that there is an agreement to sell with regard to the suit property between plaintiff and defendants through Zahoor Ahmad one of the defendants dated 5.1.1995 and the agreement was extended vide agreement dated 8.7.1998 and it is further mentioned that the suit property was pledged with the bank and matter was pending before the learned Judge Banking Court. On facts it is stated that since the date of decree the delivery of possession and sowing of crop is in the knowledge of the applicants. It is further mentioned that applicants appeared in person before the court and their counsel also appeared and their Identity Card numbers were also mentioned when their statement was recorded by Malik Ghulam Muhammad, Civil Judge, who passed the decree in the suit. It is further mentioned that the power of attorney in favour of one of the defendants Zahoor Ahmad is registered one and same has not been cancelled, therefore, the stance taken by the applicants is absolutely against the law. It is further stated that the part of the suit property was exchanged and the pre-emption suit filed by Abdul Razzaq is also in the knowledge of the applicants from the day first, therefore, application is barred by time and not maintainable and has been filed malafidely.
4. Learned trial court framed the issues, invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned trial court not only accepted the application but set aside the judgment and decree passed by the learned trial court and it was ordered to the DDOR to reverse the mutation in favour of the decree holder. Respondent No. 1 being aggrieved by the judgment passed by the learned trial court whereby the application filed under section 12(2) of the CPC was accepted, filed a revision petition which has been accepted by the learned revisional court and the order passed by the learned trial court accepting the application under section 12(2) dated 20.10.2005 has been reversed. Hence, this writ petition by the applicants of application under section 12(2) of the CPC.
5. Learned counsel for the petitioners argues that suit was to be filed for specific performance on the basis of agreement to sell and further that the application under section 12(2) of the CPC has been filed on the basis of misrepresentation and fraud and for want of jurisdiction. Learned counsel argues that when the suit property was mortgaged with the Bank and matter was pending before the learned Judge Banking Court, therefore, the transaction claimed by the plaintiffs-respondents was hit by section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. States that when possession was claimed, the plaintiff was required to pay the court fee. States that when sale was claimed on the basis of oral agreement to sell, therefore, pleading in detail date, time and place and names of the witnesses were necessary. States that when evidence was recorded in the application under section 12(2) of the CPC the case pleaded by the plaintiff-respondent that he has purchased the suit property for Rs:11,50,000/-, therefore, argues that agreement to sell dated 22.12.1994 has been produced as Exh.A20 which contains allegedly the signatures of Zahoor Ahmad only and does not contain the signature of the purchaser Pakistan Cargo Services (Pvt) Limited. Same is the position of agreement of extension of time Exh.A19. It is further argued that the suit was pending before the learned Civil Judge Class-II, who was having pecuniary jurisdiction of Rs:50,000/- at that time. Further argues that Mr. Aziz Ahmad Khan, Advocate appeared as RW-2 and he has admitted that he is working with Pakistan Cargo Services (Pvt) Limited since the year 1992. Finally argued that when in the plaint there is no mention of agreement to sell and payment under the agreement, same cannot be considered. Prays for acceptance of the instant writ petition.
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