ORDER

Muhammad Shafi Siddiqui, J.- Vide order dated 19.4.2010 the petition was dismissed in limine by a short order. Following are the reasons in support thereof.

2. That the petitioner has impugned two orders in this petition i.e. order dated 11.1.2010 passed by the Ist Senior Civil Judge, Karachi (East) in Suit No. 612/2007 and the other dated 29.11.2011 passed by the Vth Additional District Judge, Karachi (East) in Civil Revision No.10/2010.

3. Brief facts of the case are that the petitioner filed a suit bearing No. 612/2007 for specific performance of an agreement in respect of the plot bearing No. R-164, Sector 32-A, measuring 120 square yards against the respondents No.1 & 2. The total sale consideration was Rs.750,000/. Per learned Counsel vide Sale Agreement dated 26.1.2007 the petitioner paid in cash an amount of Rs.650,000/- and the balance was agreed to be paid at the time of execution of the Sale Deed/transfer. It is contended by the learned Counsel that since February 2007 the petitioner had been approaching the respondent No.2 and offered the balance amount, however he kept the petitioner on false hopes and avoided the transfer. Consequently, on 10.5.2007 the petitioner sent legal notice, however, it was not responded. It is contended that since the market value of the subject property was shooting up at the relevant time, the respondent No.4 avoided to perform its contractual obligation. Consequently the petitioner filed suit ibid and the summons were issued and respondent No.2 came forward to contest the case as attorney. However, later on they failed to appear in Court which resulted in passing of the order for filing ex-parte proof. Subsequently the judgment was passed on 24.3.2008 and the suit was decreed on 31.3.2008.

4. The petitioner then filed an Execution Application No. 11/2008 but the respondents failed to appear despite the publication in daily newspaper. As the matter proceeded the writ of possession was also issued and it was resisted by the respondent No.3. Subsequently as the Execution bearing No.11/2008 proceeded pursuant to the exparte decree, the intervenor who is respondent No.3 here, moved an application under section 12(2)CPC as well as an application under Order I Rule 10 CPC praying therein that the judgment and decree obtained by the petitioner be set aside as it was obtained through misrepresentation and fraud. That the said application was contested by the petitioner before the trial Court and after detailed hearing the said application under section 12(2) CPC was allowed by the learned trial Court vide order dated 11.01.2010.

5. Aggrieved of the said order dated 11.1.2010 passed by the Ist Senior Civil Judge, Karachi (East), the petitioner filed Civil Revision No. 10/2010 which was also dismissed vide judgment dated 29.11.2011.

6. The petitioner has now challenged the concurrent findings of two Courts below through this Constitution Petition and has contended that the impugned order and judgment are liable to be set aside on the grounds that he has made substantial payment towards sale consideration of the subject property to respondent No.2 and that the physical possession was agreed to be handed over to him on payment of balance amount of Rs.100,000/- at the time of the registration.

7. The petitioner further contended that the Courts below failed to consider that the petitioner has purchased the suit property through respondent No.2 as attorney vide registered Power of Attorney pursuant to which the Sale Agreement was executed on 26.1.2007. Learned Counsel submitted that all original documents pertaining to the suit property are lying with him. He submitted that the transaction was between the petitioner and the respondents No.1 & 2 and as such there was no necessity of issuance of summons to the respondent No.3 who may have been in possession of the suit premises.

8. He submitted that the writ of possession was issued in respect of the property and not against the respondent No.3 who is a land grabber. Learned Counsel further submitted that the appellate Court failed to consider that pursuant to Section 47 the trial Court does not enjoy powers to set aside and recall its own orders unless evidence is recorded. He conceded that no summons were issued to the respondent No.3/intervenor as he was not a party to the suit and that the claim of the respondent No.3/intervenor was based on forged and fabricated documents. He submitted that filing of the suit by him was on account of attitude of the respondent No.2.

9. He further contended that the issuance of summons and notices and their service on correct address was the duty of the Court and it is for the office to see whether or not summons/ notices were issued on correct address as provided by the petitioner. He however conceded that the summons were issued at the wrong address. He submitted that the order dated 11.1.2010 as well as the judgment dated 29.11.2011 is bad in law, illegal, unlawful, perverse, erroneous and against all norms of justice. Lastly, he has urged that the application under section 12(2)CPC was decided without framing issues.

10. We have heard the learned Counsel and perused the two orders passed by the learned trial Court and appellate Court respectively.

11. This petition is based on concurrent findings of the two Courts below. The Counsel for the petitioner has failed to point out as to how the findings of the two Courts below were perverse, illegal and unlawful. As far as the contention of the learned Counsel for the petitioner viz-a-viz disposal of the application without framing of issue is concerned, it has now been a unanimously approved principle that for its determination it would be the discretion and prerogative of the learned trial Court to adopt any mode and would not be under obligation in every case to frame issues, record evidence and follow procedure prescribed for decision in a suit. The remedy under section 12(2)CPC would not always be available like a regular suit and the Court may dispose of an application under section 12(2)CPC without framing issues, recording evidence of the parties and following the procedure for trial of the suit. Off course, where the court finds that further inquiry by way of recording evidence is required for determination of an issue in an application under section 12(2)CPC it would frame issues and record evidence but if in the opinion of the learned trial Court no inquiry is required then it can be dispensed, and proceed to decide the application without undergoing the process of recording evidence. If any law is needed in support of the above findings, the law incorporated in the following case laws may be perused:-

i) M/s. Dada Bhai Cement Industries Limited Vs. NDFC Karachi (PLD 2002 SC 500),

ii) Nazir Ahemd Vs. Muhammad Sharif & others (2001 SCMR 46),

iii) Mst. Nasra Khatoon & another Vs. Mst. Ayesha Bai & others (2003 SCMR 1050) AND

iv) Muhammad Yousuf Vs. Lal Din & others (2006 YLR 677).

12. The Hon’ble Superior Courts had left the observance of this process to the satisfaction of the Court which has to regulate its proceedings. Considering the above aspects the learned two Courts below found that there was enough material to dispense with the rule of recording evidence proceeded with the application for its disposal on merits. In addition the petitioner had already conceded that the summons and notices were issued at the wrong address.

13. The other limb of the arguments was that under section 47 CPC the trial Court is not empowered to set aside and recall its own order. For the assistance we would reproduce Section 47 CPC as under:-

“47. Questions to be determined by the Court executing decree, (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary order payment of any additional Court-fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

Explanation. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.”

A plain reading of this section provides that for its application it is necessary that all questions arising between the parties to the suit in which the decree was passed are determined by the executing Court.

14. Prima facie the respondent No.3 was not a party in the suit and the questions are not pertaining to the execution, discharge or satisfaction of the decree but passing of judgment and decree itself by trial Court by playing fraud and misrepresentation and the only Court that can look into such affairs is the Court which passes such judgment and decree.

15. Section 47 in our view would not apply to the current proceedings. If any case law is required 1993 MLD 1258 and PLJ 1982 Karachi 82 can be looked in. In 1993 MLD 1258, the observation of the learned Division Bench is as under:-

“Execution of decree was objected to firstly on ground that decree sought to be executed had been obtained by fraud and misrepresentation and was without jurisdiction; secondly that matter was time-barred when award in question was made rule of Court and thirdly that arbitrator who gave two awards, while giving second award had already become functus officio, thus award could not be made rule of the Court ---Special remedy for challenging validity of a judgment, decree or order on plea of fraud or misrepresentation or for want of jurisdiction having been provided under S.12(2) CPC, objector could avail that remedy by filing application under that section to Court which had passed decree which according to objector was obtained by committing fraud or by misrepresentation---Objection raised by objector before Executing Court without availing special remedy under S.12(2) CPC was misconceived.”

16. There are concurrent findings of the two Courts below and it has not been contended or established that the findings were perverse, corum non judice, without jurisdiction and without lawful authority so as to enable us to assume jurisdiction.

17. The concurrent findings of the Courts below cannot be successfully assailed in the constitutional jurisdiction of the High Court unless Courts below had exceeded from its jurisdiction which has not been urged by petitioner. Needless to mention that the learned trial Court had directed the petitioner to file amended plaint by incorporating the respondent No.3/Intervener as party and thereafter the suit would proceed and disposed of strictly on merits after providing opportunity to the parties to record evidence in support of their claim.

18. Above are the reasons and findings in support of the short order dated 19.4.2012 whereby the petition was dismissed in limine.

JUDGE

JUDGE