ARSHAD MEHMOOD Versus DOST MOHAMMAD
CH. MUHAMMAD MASOOD JAHANGIR, J.--- There was no dispute to the effect that suit house measuring 06 Marlas was exclusively titled by Nazir Ahmed father of the petitioner. The ownership was transferred in favour of petitioner by his father through attestation of mutation No.316 dated 04.03.2002 and four days thereafter Dost Muhammad, the real brother of Nazir Ahmed, brought a suit for specific performance of oral agreement dated 15.01.2002 contending therein that he had purchased half of the suit property from his brother against a consideration of Rs.24,000/-. After initiation of ex parte proceedings it was ex parte decreed on 08.11.2002. No sooner the ex parte decree came into the knowledge of the petitioner, he filed an application under section 12(2) of the Code, 1908 mainly alleging therein that the property prior to institution of suit had already been transferred to him, but without his impleadment and issuance of notice and that the decree was procured by means of fraud and misrepresentation, which was defended by Dost Muhammad-decree holder with the firm stance that prior to institution of suit, the mutation was not attested in favour of present petitioner and after appreciating evidence brought on lis file the application was allowed by the learned Civil Court vide judgment dated 10.04.2010, however, the learned Additional District Judge upset those findings and dismissed the application under section 12(2) of the Code ibid through order dated 02.10.2013, impugned herein.
2. The petitioner approached this Court through petition in hand in 2013. After due service of notices to respondent-decree holder, on his behalf Mr. Muhammad Arif Gondal, Advocate submitted his Power of Attorney on 29.04.2014, but till today despite the fact that case was fixed for 07.04.2015, 12.05.2015, 25.06.2015, 10.01.2017, 22.01.2018 as well as 15.02.2018 the said learned counsel failed to appear before this Court and on each occasion adjournment was sought on his part. Despite the fact that case was actually fixed for today neither any prior intimation was sent by learned counsel for respondent for its adjournment nor he or his associate appeared before this Court rather only his Clerk made a request for adjournment due to his non-availability. This case is lingering on for the last five years, but without any progress and I am going to decide this Civil Revision on merit after hearing arguments of learned counsel for petitioner and perusal of record.
3. It was a simple case whether at the time of institution of the suit by respondent the property had already been transferred to the present petitioner or not. This fact was not only proved by petitioner through production of certified copy of mutation No.316 dated 04.03.2002 on record, rather it was also conceded by respondent (RW1) during his cross-examination that the suit property had already been transferred to the petitioner through aforenoted mutation, which was also in his complete knowledge. The vital part of his cross-examination is reproduced hereunder:--
Same was the position of his supporting witness Rafaqat Ali (RW3), who in his statement-in-chief stated as under:--
However, the learned Additional District Judge without appreciating the available evidence in its true perspective erred in law while dismissing the application under section 12(2) of the Code through the impugned judgment dated 02.10.2013, which being classic example of misreading and non-reading of the evidence cannot be sustained.
4. Resultantly, this Civil Revision is allowed, impugned judgment is set aside and that of learned Trial Court by virtue of which application under section 12(2) of the Code ibid was accepted is restored. The suit instituted by respondent stands restored, the latter will implead the petitioner in the group of defendants and thereafter the trial will proceed. The petitioner will approach learned District Judge Mandi Bahauddin on 23.04.2018 for the entrustment of suit file to a Court of competent jurisdiction for further proceedings.
ZC/A-49/L Revision allowed.