MUHAMMAD HUSSAIN vs Mst. RAZIA BIBI and others

' Briefly stated the facts of the case are that the petitioner filed a suit for declaration against the respondents which was decreed on 9-10-1991. Respondents Nos.1 to 8 preferred an appeal before the learned District Judge, Vehari which was disposed of in terms of a compromise according to which the decree, dated 9-10-1991 was modified to the extent that out of 100 Kanals, Respondents Nos. 1 to 8 were also given 20 Kanals of land. After implementation of the decree, Respondent No,1 filed an application under section 12(2), C.P.C. For setting aside the decree, dated 20-3-1995. An application was also moved by respondent No,1 for the verification of her thumb impression. The learned Additional District Judge instead of framing the issues accepted the application under section 12(2), C.P.C. Vide order, dated 28-9-1996 to the extent of Razia Bibi, respondent No,1.

2. Notice was given to the respondents and only respondent No,1 has appeared while respondents Nos.2 to 10 are absent despite notice. They are proceeded ex parte.

3. Arguments have been heard at length.

4. Learned counsel for the petitioner has submitted that the parties were at issue and serious questions of law and facts were involved which required evidence but neither the issues were framed nor the parties were directed to produce the evidence and that the impugned order was not sustainable in the eye of law and that the allegation of fraud could not be proved without strong evidence sifted through cross-examination and that even otherwise the order is one sided and the power of attorney has also been misinterpreted. Reliance has been placed on PLD 1983 Lah. 278 and 1984 SCMR 1262.

5. Learned counsel for respondent No,1 has submitted that each case has got its own facts and that in the present case the file was available with the Court and the power of attorney was also there in which there was no power to compromise available in favour of the counsel although it was not conceded that such power of attorney was given by respondent No,1 to Mr. Javed Iqbal, Advocate.

6. I have given due consideration to the valuable arguments on both the sides and have gone through the file and I feel that issues should have been framed and evidence taken from both the sides and the application decided in accordance with law. As such, the revision is accepted and the impugned order passed by the learned Additional District Judge, Vehari, dated 28-9-1996 is set aside and the matter is remanded back to the learned trial Court to frame issues and allow the parties to adduce their evidence and decided the application under section 12(2), C.P.C. Afresh within three months positively on receipt of this order and compliance report shall be sent to this Court through Additional Registrar.

7. Parties to appear before the learned trial Court on 3-11-1998.