2019 C L C 2016
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
LAL BIBI and 10 others----Petitioners
Versus
ABDUL REHMAN and 8 others----Respondents
Constitutional Petition No.164 of 2018, decided on 1st August, 2019.
Civil Procedure Code (V of 1908)---
----O.XXIII, R.3 & S.12(2)---Suit for declaration and permanent injunction---Compromise decree,
setting aside of---Limitation---Application under S.12(2), C.P.C.---Fraud and misrepresentation---Non-
framing of issues---Effect---Trial Court dismissed petition for setting aside of compromise decree but
Appellate Court remanded the matter for decision afresh after recording of evidence---Validity---
Petitioners had raised specific plea of fraud and misrepresentation which had been denied by the
respondent while submitting reply of petition---Parties should have been provided reasonable opportunity
to produce their evidence, in circumstances---Framing of issues in every application under S.12(2),
C.P.C. was not necessary but in certain cases issues should be framed and evidence was required for just
conclusion---No illegality or irregularity had been pointed out in the impugned order passed by the
Revisional Court---Constitutional petition was dismissed, in circumstances.
Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 rel.
Mumtaz Hussain Baqri for Petitioners.
Syed Muhammad Tahir, Gul Bibi and Taj Bibi for Respondents Nos. 2 and 7.
Date of hearing: 24th July, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J.--- Through this Constitutional Petition the petitioner prayed as
under:
"It is therefore, prayed that impugned order passed by respondent No.9 on 13.12.2017 may be set-
aside/strike down and order passed by Senior Civil Judge-I, Quetta on 14.12.2015 may be ordered
to be maintained/hold the field. This will meet the ends of justice."
2. Brief facts leading to file the referred Constitutional Petition are that the parties filed two Civil
Suits i.e. Civil Suit No.170 of 2000 and Civil Suit No.17 of 2001. In Civil Suit No.170 of 2000, the
plaintiffs Jan Bibi and others, sought Declaration, Correction of Mutation Entries, Partition and
Permanent Injunction, with the averments that the plaintiff and defendants Nos.1 to 8 are legal heirs of
Late Abdul Hayee, who contracted two marriage with plaintiff No.1 and dependent No.8. The
predecessor-in-interest was Superintendent in Regional Transport Authority, who died on 17-10-1999.
The late Abdul Hayee left behind various properties in Quetta District as well as in Mastung District,
purchased mostly by Banami Transactions, details whereof are as under:
1. Shop No.70, situated at Sirki Bus Stand, Quetta, bearing Khasras Nos.2305, 2298, 2296 and
2202/32, measuring 10x16 Pols purchased by late Abdul Hayee by benami transaction in the
name of defendant No.2.
2. House No.2-35/6 situated at Jamiat Rai Street Archar Road, Quetta bearing Khasra No.353,
measuring 1115 sq:ft purchased by late Abdul Hayee by Benami transaction on the name of his
sons i.e. defendants Nos.1 and 3.
3. House No.2-35/5, situated at Jamiat Rai Street, Archar Raod, Quetta bearing Khasra No.354,
measuring 1115 sq:ft purchased by benami transaction in the name of his son plaintiff No.4 and2019 C L C 2016 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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defendant No.2 namely Abdul Rehman and Muhammad Naeem.
4. House No. Nil, situated at Spinzer Colony Sariab Raod, Quetta bearing Khasra Nos.2030, 1967,
1966, 1947, 1878, 1963/435, measuring 39 pols purchased by benami transaction in the name of
plaintiff No.4, defendants Nos.1, 2 and 3 respectively.
5. Lease of Coal mine measuring 258 acres, situated near Sira Maghzi District Quetta, in the name of
dependent No.2.
The plaintiffs prayed for partition of the above inherited properties.
3. In Civil Suit No.27 of 2001, the plaintiff Muhammad Naeem, sought partition of house bearing
No.2-35-5, situated at Jamiat Rai Street, Archar Road, Quetta, with the averments that the same was
jointly owned by the plaintiffs and defendants and plaintiff is owner of half of the above property,
therefore, prayed for partition of the same.
4. The learned trial Court consolidated both the suits and out of the pleadings of the parties, framed
the following issues in both the suits:
In Civil Suit No.170 of 2000:
(i) Whether the suit of the plaintiffs is barred under section 42 of the Specific Relief Act, against the
defendants Nos.9 and 10?
(ii) Whether the suit is liable to be dismissed in view of P/O A, B of the written statement filed by
dependents Nos.1 to 8?
(iii) Whether the properties mentioned in Serial Nos.1, 4 and 5 in para No.2 of the plaint were owned
by late Abdul Hayee and the partition has not been done among the legal heirs?
(iv) Whether the plaintiff is entitled for the relief claimed for?
(v) Relief ?
In Civil Suit No.27/2001:
(i) Whether the suit is not maintainable in view of preliminary legal objection A, B of written
statement?
(ii) Whether the plaintiff is entitled to relief claimed for?
(iii) Relief?
7. The plaintiffs in Civil Suit No.170/2000 produced six witnesses as well as got recorded statement
of their attorney, while the defendants produced two witnesses and the dependent No.2 recorded his
statement for himself and as attorney for the defendants.
8. On conclusion of trial, the Civil Suit No.170 of 2000 was decreed while the Suit No.27/2001 was
disposed of being part of the earlier suit vide consolidated judgment and decree dated 28.06.2003.
9. A stranger to the suit/intervener, being aggrieved of the judgment and decree dated 28.6.2003,
preferred an appeal before Additional District Judge-II, Quetta. The appeal was accepted vide order
dated 29.10.2003, and the case was remanded to the trial court for re-writing of judgment and impleading
of the intervener/appellant as a party in the main suit with further direction to provide opportunity of
arguments to both the parties.
10. After remand of the case to the trial court, the parties patched up the matter and compromise deed
was submitted before the trial court. The trial court vide order dated 20th February, 2004 decided both
the suits on the basis of compromise and directed the parties to abide by the compromise.
11. Thereafter an application under section 12(2), C.P.C. was filed by respondents Nos.2 to 7 with the2019 C L C 2016 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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prayers that this Hon' able court may kindly be pleased to frame issues and call for evidence of the
parties and set-aside the order and decree dated 20.2.2004, by passing a proper order with directions to
give the due shares of the applicants and other female respondents according to their respective shares in
the properties/legacy left by late Abdul Hayee.
12. The petitioners filed their reply and contested the application while the plaintiff/defendant No.1
filed separate reply requested for acceptance of the application under section 12(2), C.P.C. The learned
trial Court vide order dated 14.12.2015 dismissed the application under section 12(2), C.P.C.
13. The applicants/respondents Nos.2 to 7 being aggrieved of the order dated 14.12.2015 filed a Civil
Revision Petition before the Additional District Judge-II, Quetta, which was accepted vide order dated
13.12.2017 and the matter was remanded to the trial court with direction to decide the application under
Section 12(2), C.P.C. after recording evidence. Hence this petition.
14. Learned counsel for the petitioner contended that the decree passed by the trial court was within
the knowledge of the applicants and the applicants were aware that the case was decided on the basis of
compromise but they did not assail the judgment and decree; that the applicants have filed the application
under section 12(2), C.P.C. after more than 12 years without any plausible explanation; that the
Revisional Court has wrongly remanded the matter to the trial court for framing issues and recording the
evidence. He urged for setting aside the impugned order with prayer to dismiss the application under
section 12(2), C.P.C.
15. Learned counsel for the respondents strongly opposed the petition and contended that the
Revisional Court has passed a well reasoned order. He urged for dismissal of the petition.
16. Heard. Record perused. The perusal of record reveals that the Revisional Court has accepted the
petition by remanding the matter to the trial Court with direction to frame issue by affording opportunity
of leading evidence of the parties and to decide the application under section 12(2), C.P.C. in accordance
with law. It is worth to mention here that in the application under section 12(2), C.P.C. the
applicants/respondents have raised specific plea of fraud and misrepresentation, which was denied by the
petitioner by submitting reply to the application. Under such circumstances it is necessary to provide
reasonable opportunity to the parties to produce their evidence. Although it is not requirement of law to
frame issue in every case under section 12(2), C.P.C. but in certain cases issues are to be framed and
evidence is required for reaching at a just conclusion. Reliance in this regard is placed on the case of
Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708, wherein it has been held as follows:
"Thus after the insertion of this new provision, the validity of a judgment and decree etc. obtained or
alleged to have been obtained on the basis of fraud and misrepresentation or from a court having
no jurisdiction could only be challenged by moving an application to the same court which passed
the final decree etc. and not by a separate suit. Obviously if such application is straightaway
conceded to by the plaintiff/decree holder, the judgment, decree/order assailed shall be set aside
and the suit of the plaintiff shall automatically stand revived; however if the application is
resisted/contested by the decree holder, the court may, frame the issues (note: if need be, because
on all such applications it is not imperative to do so; or to hold the trial, as the application under
section 12(2), C.P.C. can be dismissed on the basis of pleadings of the parties simpliciter as the
facts of the case may warrant) on the basis of the pleadings before it, which issues ordinarily and
particularly in this case are restricted to and are primarily meant for the purpose of adjudication
and determination of the application under section 12(2), C.P.C."
The learned counsel for the petitioner has not been able to point out any illegality and irregularity in
the impugned order passed by the Revisional Court.
Thus, in view of above, the order passed by the Revisional Court being well reasoned, warrants no
interference by this court, therefore the petition being devoid of merits is dismissed with no order as to
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ZC/78/Bal Petition dismissed.
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