ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Constt: Petition.No.S-413 of 2009.
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Date of hearing |
Order with signature of Judge |
Before: Mr.Justice Irshad Ali Shah
1. For orders on M.A.No.1884/2013 U/o 22 R 3 CPC
2. For hearing of M.A.No.895/2009. S.A.
3. For hearing of main case.
07.12.2018.
Mr.Vinod Kumar Jessrani, Advocate for the petitioner.
Mr.Habibullah G.Ghouri, Advocate for respondent No.3.
Mr.Naimatullah Bhurgri, State Counsel.
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The petitioner by way of instant constitutional petition has impugned an order dated 18.04.2009, passed by learned Additional District Judge, Kandhkot, whereby he has maintained the order dated 20.09.2008, passed by learned Senior Civil Judge Kandhkot, whereby an application U/s 12 (2) CPC filed by Mst.Rehmat Khatoon was accepted and consequently the decree dated 28.08.2003, passed in F.C.Suit No.115/2001 Re. Sahib Ali Khan Vs. Mst.Mooran and others, was set aside.
The facts in brief necessary for disposal of instant constitutional petition are that; a suit for Declaration and Permanent Injunction was filed by the petitioner before learned trial Court for the following relief;
i). To declare that all sections of defendants taken or intended to be taken for dispossessing the plaintiff forcibly from the property in suit i.e S.No.372, 838, 118, 119 area 8 acres and 22 ½ Ghuntas, situated in deh Kandhkot, Taluka Kandhkot, one shop and house situated in Kandhkot town as mentioned in Para No.2 of plaint are illegal, malafide, fraudulent, null, void and against the provision of law.
ii). To grant permanent injunction against the defendants restraining them from dispossessing the plaintiff forcibly from property in suit as said above.
iii). To grant costs of this suit.
iv). To grant any other relief which the Honourable Court deems it fit and proper under circumstances of the case.
During course of pendency of above suit, both the parties agreed for the arbitration and it was disposed of by way of award arrived at by the arbitrators; consequently decree dated 28.08.2003 was drawn. Subsequent to that, Mst.Rehmat Khatoon filed an application u/s 12 (2) CPC before learned trial Court with the pleadings that she neither has appeared before the learned trial Court nor has engaged any counsel, nor has knowledge of the decree so passed, as such it has got no binding effect upon her. By submitting so, she sought for setting aside of the above said decree.
On hearing of learned counsel for the parties, the learned trial Judge set aside the above said decree by making the following observation;
“I have come to my conclusion that framing of issues are not necessary in this case and this application is liable to be disposed off after considering the present material available on the record as pointed out above and without framing of issues and recording of evidence”.
The petitioner being aggrieved of above said order of learned trial Court impugned the same by way of filing Civil Revision Application; it was dismissed by learned Additional District Judge, Kandhkot, with the following observation;
“Detailed arguments advanced by the learned counsel for the applicant has not satisfied me that any illegality or irregularity has been caused by learned Lower Court while passing the impugned order rather it is well and well reasoned order maintaining and discussing all the features of the case. From the close perusal of impugned order, it reveals that the opponentNo.1 Mst.Rehmat Khatoon is a old aged lady and further it reveals that except the R.T.I on the Vakalatnama and on the application for referring the matter to the Arbitrators, written in Sindh, the presence of opponent No.1 Mst.Rehmat Khatoon in the entire proceedings is not proved. It further reveals from the report of Arbitrator that it was also not passed in presence of the opponent No.1 and order of learned Lower Court dated 28.08.2003 whereby the suit was decree on the basis of award passed by Arbitrators was also passed in her absence. The above facts clearly shows that the order of learned Lower Court which is very much detailed on any of its aspects related to facts and law is just and proper and according to well settle principle of law, as such calls for no interference in the revision, which is hereby dismissed with no order as to costs”.
The petitioner being aggrieved of above said order of learned Revisional Court impugned the same before this Court by way of instant constitutional petition.
It is contended by learned counsel for the petitioner that the decree was passed by learned trial Court in accordance with law on the basis of award passed by arbitrators, it ought not to have been set aside by learned trial and revisional Court on the basis of false allegation of misrepresentation that too without recording evidence, which was essential in case like the present one. By contending so, he sought for reversal of the impugned order of learned trial and revisional Court with direction to learned trial Court to decide the application u/s 12 (2) CPC afresh in accordance with law, after recording of evidence.
Learned counsel for Mst.Rehmat Khatoon (respondent No.3) has sought for dismissal of the instant constitutional petition by supporting the orders of learned and revisional Court by contending that the decree was sought for by the petitioner by practicing fraud and misrepresentation.
Learned State Counsel on behalf of official respondents was fair enough to say that no public interest is involved in the instant litigation. While none appeared on behalf of rest of the private respondents, though they were served with the notice of instant constitutional petition by way of publication in daily newspaper “Kawish” dated 06.03.2011.
I have considered the above arguments and perused the record.
As per record, the suit filed by the applicant was decreed by learned trial Court by way of arbitration, on the basis of consent of both the parties. If for the sake of arguments, it is believed that Mst.Rehmat Khatoon has neither appeared before learned trial Court, nor has consented for appointment of arbitrator, then such allegation involving factual controversy, she was under obligation to have proved by recording her evidence being essential in circumstances of the present case. In that situation, the setting aside of the decree on the basis of simple allegation was not called for.
In case of Muhammad Hussain Vs. Mst. Razia Bibi and others (1999 MLD-3030), it is held by the Honourable Court;
“---S. 12 (2)---Specific Relief Act (I of 1877), S.42---Suit for declaration challenging validity of judgment and decree on plea of fraud---Suit was decreed by Trial Court---Appeal filed against judgment and decree of Trial Court was disposed of by Appellate Court in terms of compromise and decree passed by Trial Court was modified accordingly---Respondent, after implementation of said decree, filed application under S.12(2) C.P.C, for setting aside the modified decree alleging fraud---Appellate Court accepted application of respondent without framing issues---Validity---Issues should have been framed by Court and evidence taken from both sides and application under S.12(2), C.P.C decided in accordance with law---High Court set aside order of Appellate Court and remanded matter to Trial Court to frame issues and allow parties to adduce their evidence and decide application under S.12(2) C.P.C, afresh accordingly.
In view of above, the impugned order(s) of learned trial and revisional Court are set aside, with direction to learned trial Court to dispose of application u/s 12 (2) CPC afresh, after recording evidence of the all the concerned by providing them chance of fair trial, which is guaranteed by Article 10-A of the Constitution.
The instant constitutional petition is disposed of accordingly.
JUDGE
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