GUL HASSAN Versus MUHAMMAD SIDDIQUE
1. IMAM ALI G. KAZI, J.‑‑‑ Facts leading' to the filing of present petition under Article 199 of the Constitution are briefly stated as under:
2. Respondent Muhammad Siddique on 25‑6‑1988 filed a suit in the Court of 1Ind Senior Civil Judge,‑Karachi East, against Haji Gul Hasan since deceased and Mukhtiarkar, Karachi East for permanent injunction in respect of Survey No.17 situated in Deh Ameelani Tapo Darsano Chanoo, Taluka/District Karachi East. He claimed that he has been in possession of the agricultural land on the basis of an agreement and had also installed a tube well and obtained electric connection for it. Out of the survey numbers in his possession according to his statement made in the plaint the defendant was trying to transfer Survey No. 17 to some other person which necessitated filing of the suit praying for grant of permanent injunction restraining the defendant from transferring the Survey No.17 without due process of law.
3. During the pendency of the suit an application was filed under Order 23, Rule 3, C.P.C. The application was signed by both the parties and their advocates. The application was also signed by three witnesses. On 26‑3‑1989 the Trial Judge allowed the compromise application and directed preparation of decree in terms of the compromise. On 5‑7‑1989 an application was filed under section 12(2), C.P.C. on behalf of defendant No.1. Defendant Haji Gul Hasan claimed that the application for compromise filed in Court does not bear his signature and the decree be set aside. In support of this application affidavit of three witnesses who had signed the compromise application, as stated above, was also filed. All‑of them stated that they had not decided the dispute as members of the Jirga as is alleged in the compromise application. The trial Judge after hearing the Advocate for the plaintiff (Advocate for the defendant being absent) passed an order on 30‑8‑1990 and allowed the application.
4. The respondent then riled a revision application in the Court of District Judge, Karachi East, which came up for hearing by the Ilnd Additional District Judge, Karachi East. The Additional District Judge passed an order on 22nd December, 1990 (Civil Revision Application No.40 of 1990) and. set aside the order of the trial Judge.
5. It appears that the defendant Haji Gul Hassan expired in the meanwhile and his legal heirs have filed this petition impugning the order of the Additional District Judge, Karachi East, mentioned in the preceding paragraph.
6. Mr. Mazhar Ali B. Chohan, Advocate for the petitioner mainly contended that the trial Judge after verifying the record recorded his finding that the signature of the defendant on the compromise application did not tally with this genuine signature. It was mainly due to this reason that he had set aside the decree passed earlier. As against it Revisional Court has decided the Revision Application merely on the basis of conjectures.
7. Mr. K.B. Bhutto, Advocate appearing for respondent No.1 supported the order of the Additional District Judge and stressed that it was after considerable time that application under section 12(2), C.P.C. was filed by the defendant.
8. After hearing the arguments of the counsel for the parties and examination of the order impugned herein we find that this is a case which needed examination of the allegations made in the application under section 12(2), C.P.C. on the basis of some evidence though there appears to be nothing wrong in the conclusion reached by the trial Judge on the visual examination of the documents on the point of genuineness or otherwise of the signature of the defendant in the suit. Still in view of such serious allegations it would only be proper that the trial Judge ought to have directed the parties to lead evidence in support of their respective stands. Normally a cause before the Civil Court is required to be decided on the basis of oral examination of witnesses produced by the parties as is laid down under Order 18, C.P.C. and it is only in certain cases where for a sufficient reason Court may order that any particular fact or facts may be proved by affidavits as provided under Order 19, C.P.C. In the latter case if the other side requires production of witnesses for cross‑examination the witnesses will be produced for the purpose. It is only I after witnesses are cross‑examined and re‑examined that such depositions become evidence under the Qanun‑e‑Shahadat. In the present case the, respondent wanted to have a formal decree of the Court already passed set aside on ground of fraud and misrepresentation, it was therefore necessary for him to lead evidence to prove his allegations. It was for such reason that we had by our short order passed on 22‑4‑1992 allowed the petition and remitted the case to the trial Judge to decide the application filed by the petitioner under section 12(2), C.P.C. after recording of evidence. Both the parties shall be allowed to adduce evidence and the decision made by the trial Judge after hearing the parties.
9. AA./G‑304/K Case remanded.