2021 M L D 1017
2021 M L D 1017
2021 M L D 1017
2021 M L D 1017
[Lahore]
Before Muhammad Ameer Bhatti, J
MUHAMMAD ISHAQUE---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
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by both the learned Courts below. Hence this petition is meritless and liable to a
dismissal.
4. The learned trial Court after examining the record and considering the
averments of pleadings concluded that since the Court record is under challenge,
which apparently did not reflect any illegality or any sort of fraud, hence the
application was not liable to be further processed and resultantly it was dismissed
summarily. The revision petition preferred by the petitioner also met with the same
fate. Hence this constitution petition.
5. Main stress of learned counsel for the petitioner is that it was the prime duty
of learned trial Court to frame issues after receipt of written reply on behalf of
respondents so that the parties could lead their evidence and by not doing so, the
learned trial Court committed material illegality and irregularity in view of law laid
down in case reported as Mst. Zulaikhan Bibi through LRs and others v. Mst.
Roshan Jan and others 2011 SCMR 986, Muhammad Iqbal through duly Authorized
Attorney v. Muhammad Ahmed Ramzani and 2 others (2015 CLC 396) wherein it
was held that the application under Section 12(2), C.P.C. could not be dismissed
summarily. He further contends that specific allegation with regard to the act of
Reader of Court was leveled, who allegedly recorded statement of the
defendant/petitioner against his wishes and this factual controversy could only be
resolved unless opportunity to lead evidence was provided. Besides the note, as
necessary under the law, had not been recorded by the learned Presiding Officer,
therefore, the proceedings were otherwise not sustainable. Adds that the learned
Courts below have not answered this specific allegation leveled in the application
qua conduct of proceedings by the Reader. Further adds that after obtaining decree,
respondents have not approached the Revenue hierarchy for review of mutation
recorded in favour of petitioner/defendant on the basis of gift deed, till the filing of
application under Section 12(2), C.P.C. by the petitioner. Lastly he prayed for the
remand of the case with a specific direction to the learned trial Court to frame
issues and provide opportunity to the parties to lead their evidence in order to
substantiate their stand taken in the application pro and contra.
6. On the other hand, learned counsel for respondents contends that it was not
always necessary to frame issues in proceedings under Section 12(2), C.P.C.,
therefore, the learned Courts below have not committed any illegality and
irregularity by not framing issues and recording evidence, as the petitioner had not
alleged any fraud or misrepresentation against respondents/decree-holders. Further
contends that the allegation of the petitioner that proceedings have been recorded
by the Reader in absence of learned Presiding Officer, is not borne out from any
part of the proceedings nor did he point-out any specific act to prove his
contention. Since Court proceedings have the sanctity, hence recording of evidence
was not necessary to refute the allegation being baseless. Thus the orders of learned
Courts below are in consonance of principles of equity and law and application of
judicious mind, therefore, the contention of learned counsel for petitioner has been
rightly turned down by the learned Courts below. He placed reliance on Mst. Nasira
Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050), Anwr
Hayat and 4 others v. Mst. Durre Samin and 4 others 2012 CLC 1536 (Peshawar),
Abdul Rasheed and 7 others v. Nasrullah and 8 others 2010 YLR 309 (Karachi),
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Riaz Ahmad (Rana Riaz Anjum) and another v. The Bank of Punjab 2016 CLD 596
(Lahore), Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010
SCMR 1097), Mst. Zaitoon v. Mst. Rehmi through L.Rs. 2005 MLD 978 (Lahore),
Muhammad Azeem and 3 others v. National Bank of Pakistan and 8 others 2001
MLD 135 (Lahore), Mrs. Shakila Zaidi through Attorney and 8 others v. Hammad
Asif Dosslani and others 2011 CLC 1011 (Karachi), Mehr Din through Legal Heirs
v. Azizan and another (1994 SCMR 1110) and Muhammad Ramzan v. Muhammad
Akbar Bhatti and others 2013 CLC 1561 (Sindh).
7. I have heard the learned counsel for the parties and examined record of the
case. Undeniably in the suit filed by the respondents against the petitioner, transfer
of land-in-dispute on the basis of purported gift deed allegedly executed by father
of the parties was challenged on the allegation of fraud and mis-representation.
During pendency of said suit, appearance of the petitioner to make the statement
and putting his thumb impression on the margin of order sheet has undoubtedly a
significant effect, which has been called-in-question by virtue of application under
Section 12(2), C.P.C. by the petitioner with the assertion that it was obtained from
the Court through fraud, therefore, justification given in application has been
examined with the assistance of learned counsel for the parties wherein the
petitioner took the stand that he was persuaded by his newly engaged counsel that
the respondents/plaintiffs intended to withdraw the suit on account of fear of its
failure, therefore, he embossed his thumb mark on the margin of order sheet and
Reader being collusive obtained the same on a blank paper; has no substance for
the reason that the withdrawing party always put its thumb impression or signatures
when the statement is made even with regard to any sort of development in the suit.
Moreover when the plaintiffs/respondents had the intention to withdraw the suit
then neither engagement of a new counsel was necessary on behalf of defendant nor
obtaining his thumb impression on the margin of order sheet was justifiable
whereas, the respondents/plaintiffs' presence was necessary, who undeniably were
found absent from the scene, hence I feel no hesitation to hold that the averment of
defendant/petitioner qua obtaining of his thumb impression by practicing fraud with
collusion of Reader of the Court, has no substance/force, which being after thought
was rightly discarded by the learned Courts below. If the respondents had any
intention to withdraw their suit neither involvement of petitioner/defendant was
required nor putting of his thumb impression on the margin of order sheet was
indispensable. I am not persuaded with the assertion as alleged by the
petitioner/defendant that new counsel was engaged to manage all these affairs.
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