MUHAMMAD ALTAF vs DISTRICT JUDGE and 3 others

ORDER

MUHAMMAD TARIQ ABBASI, J.---By way of this writ petition, the order dated 30.6.2010, passed by the learned Civil Judge Attock, judgment dated 4.8.2010 and order dated 27.6.2011 passed by the learned District Judge, Attock have been called in question.

2. Through the above mentioned order dated 30.6.2010, an application moved by the petitioner under Section 12(2) of C.P.C. For setting aside the judgment and decree dated 4.1.1988 has been dismissed. Whereas through the judgment dated 4.8.2010, a revision petition preferred by the petitioner has been dismissed and vide order dated 27.6.2011, a review petition moved by the petitioner has also been turned down.

3. The precise facts are that in a civil suit filed by Sheikh Afaq Ahmad (predecessor in interest of the respondents Nos. 3-A to 3-D), against the respondents Nos. 4-A to 4-F, regarding the property bearing old No, B-V/53, recent No,B-V164, Committee No, E-108, situated at Attock, a consent decree was passed on 4.1.1988, from the court of learned Senior Civil Judge, Attock.

4. The petitioner had filed an application under Section 12(2) of C.P.C., whereby he had challenged the above mentioned consent decree, on the grounds that earlier, in a suit filed by him against Sheikh Jamshed Elahi (predecessor in interest of the respondents Nos. 4A to 4-F) regarding the same property, a decree had been passed in his favour on 4.2.1969, hence the above mentioned decree dated 4.1.1988, being obtained through misrepresentation, fraud and collusion, was not sustainable.

5. The respondents contested the above said application to be based on mala fide. The learned Trial Court had heard both the sides and dismissed the application filed under Section 12(2) of C.P.C., through order dated 30.6.2010.

6. Feeling aggrieved, the petitioner had challenged the above mentioned order of the Civil Court, before the District Court in shape of a revision petition, but dismissed through judgment dated 4.8.2010. Then the petitioner had preferred an application, whereby he sought review of the above said judgment, but dismissed on 27.6.2011. Consequently the writ petition in hand.

7. Arguments of both the sides have been heard and record has been perused.

8. The record shows that the petitioner along with his application under section 12(2) of C.P.C. Had annexed attested copies of the order and decree dated 4.2.1969, allegedly passed in his favour. In such like situation, it was necessary to frame the issues arising out of pleadings of the parties, record, version/evidence of both the sides and then decide the application filed under section 12(2) of C.P.C. But it has been observed that the learned Trial Court while giving the reasoning, which required evidence, had dismissed the above said application.

9. Although it is not always necessary to frame the issues in an application under Section 12(2) of 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 matter should be decided.

10. Even today, the petitioner is alleging the judgment and decree, copies of which were annexed by him with the application, under Section 12(2) of C.P.C. To be quite correct, genuine and rightly passed in his favour. Whereas the other party is denying any such decision in his favour. To resolve the controversy and determining the fate of the above mentioned document, it is necessary to frame the relevant issues and give an opportunity to the petitioner to prove the said document and the respondents to contradict it. If at the end, the document in the hand of the petitioner is found to be forged, then not only his application should be dismissed, but criminal proceedings against him for preparing the forged document and filing it in the court of law should also be initiated.

11. In the light of the above stated discussion, the way in which the learned courts below have decided the above mentioned application, could not be termed to be justified and demand of the law and procedure.

12. Resultantly, this writ petition is accepted, the above mentioned orders and judgment are set aside, with a direction that besides other issues arising out of pleadings, towards genuineness of the decree dated 4.2.1969, alleged by the petitioner to be in his favour and annexed with the petition under section 12(2) of C.P.C., an issue should also be framed, both the parties should be given an opportunity to lead respective evidence and then the petition should be decided as proposed above.