12/2 | The agricultural tenant, who was a cousin of the defendant's wife, filed a suit for compliance allocation for the purchase of the land in 1996, which was dismissed in 2006, while the landlord won an eviction case against the tenant and Qasim Ali took the unilateral degree in 2011 by repeating the compliance allocation without mentioning the pending case in 2010, but the High Court In 12/2 annulled unilateral degree due to concealment of previous cases. PLJ 2023 Lahore (Note) 68

The agricultural tenant, who was a cousin of the defendant's wife, filed a suit for compliance allocation for the purchase of the land in 1996, which was dismissed in 2006, while the landlord won an eviction case against the tenant and Qasim Ali took the unilateral degree in 2011 by repeating the compliance allocation without mentioning the pending case in 2010, but the High Court

In 12/2 annulled unilateral degree due to concealment of previous cases.

PLJ 2023 Lahore (Note) 68

اس کیس میں عدالت نے درخواست گزاروں کی جانب سے دائر کردہ درخواست، سیکشن 12(2) سی پی سی کے تحت، منظور کر لی ہے۔ درخواست گزاروں نے مؤقف اختیار کیا تھا کہ انہیں مقدمے کے بارے میں کوئی اطلاع نہیں ملی تھی اور ان کے خلاف 24 مارچ 2011 کو ہونے والا یکطرفہ فیصلہ دھوکہ دہی اور غلط بیانی پر مبنی ہے۔ عدالت نے یہ نتیجہ اخذ کیا کہ مدعا علیہ (قاسم علی) نے مقدمے کے دوران دیگر زیر سماعت مقدمات کی تفصیل ظاہر نہیں کی، اور گواہوں نے بھی اس بات کی تصدیق نہیں کی۔

عدالت نے کہا کہ مدعا علیہ نے عدالت میں مؤثر ثبوت پیش نہیں کیے اور مقدمے کی نچلی عدالتوں نے مقدمے کے حقائق اور قانون کا درست جائزہ نہیں لیا۔ اس کے نتیجے میں عدالت نے یکطرفہ فیصلہ کالعدم قرار دے دیا اور مقدمے کو دوبارہ سننے کی ہدایت کی۔

PLJ 2023 Lahore (Note) 68

Present: Ma s u d Ab i d Na q v i , J.

WALAYAT KHAN etc.--Petitioners

versus

QASIM ALI etc.--Respondents

W.P. No. 108393 of 2017, decided on 26.4.2021.

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Specific Relief Act, (I of 1877), S. 12--Constitution of Pakistan,

1973, Art. 199--Suit for specific performance--Ex-parte decreed--

Application for set aside ex-parte decree--Dismissed--Appeal--

Concealment of previous pendency of litigation regarding suit land by

respondent in suit--Onus to prove--Challenge to-- Respondent failed to

disclose facts about pendency of other litigation in plaint and also during

evidence--None of respondent’s witnesses including respondent in suit

deposed any information about pendency of suit--Respondent failed to

initiate any proceedings against petitioners like summoning alleged

appointed counsel by petitioners or sending wakalatnama alleged by

petitioners to handwriting expert--Evidence produced by respondent is

neither convincing nor cogent to discharge onus-- Courts below have

neither properly evaluated facts of case nor provisions of law--Petition

allowed. [Para 3 & 4] A, B & C

Mr. Wajid Ali Chishti, Advocate for Petitioners.

Ch. Asghar Ali, Advocate for Respondents.

Date of Hearing; 26.4.2021.

Or d e r

Brief facts necessary for the adjudication of this lis are that the

petitioners filed an application under Section 12(2) CPC to challenge the exparte judgment & decree dated 24.03.2011 with the averments that the

petitioners had no knowledge about the pendency of suit as they did not

receive any notices/summons and neither they appeared before the learned

trial Court nor appointed any counsel. Hence, ex-parte judgment & decree

dated 24.03.2011 is result of fraud, mis-representation having no effect upon

the rights of the petitioners. The Respondent No. 1 filed a contesting reply,

Out of divergent pleadings of the parties, issues were framed by the learned

Trial Court and parties led their respective oral as well as documentary

evidence. After hearing the arguments advanced by both the parties, the

learned Trial Court vide in order dated 26.03.2016 dismissed the application.

Feeling aggrieved, the petitioners/applicants preferred an appeal and the

learned appellate Court dismissed the appeal vide judgment and decree dated

31.10.2017. Being dissatisfied, the petitioners/applicants has filed the instant

writ petition and challenged the validity of the impugned order/judgment

passed by the learned Courts below.

2. I have heard the arguments of learned counsel for the parties and

minutely gone through the record as well as the impugned judgments and

decrees.

3. Perusal of the record reveals that a tenant of the petitioners

namely Mohammad Hayat son of Mamand filed a suit for Specific

Performance against the petitioners regarding the same suit land who is also

first cousin (زاد ماموں) of respondent’s wife on the basis of agreement to sell

dated 19.02.1996 which was dismissed vide judgment & decree dated

06.09.2006. Appeal against the judgment & decree dated 06.09.2006 was also

dismissed by the learned appellate Court vide judgment & decree dated

29.08.2009 and both the judgments &’decrees of the learned Courts below

were maintained/upheld by this Court vide judgment & decree dated

04.12.2009 in Civil Revision No. 2478/2009. Thereafter, the petitioners filed

ejectment petition against Mohammad Hayat son of Mamand before the then

DDOR, Lalian which was accepted vide order 04.12.2010 and Mohammad

Hayat challenged the ejectment order before higher hierarchy of revenue

Courts, however, remained unsuccessful till Board of Revenue Punjab.

During the above described pendency of litigation between the

petitioners and Mohammad Hay at son of Mamand who is also first cousin

(زاد ماموں) of respondent’s wife, an agreement to sell dated 02.03.2009 was

allegedly executed between the petitioners and respondent wherein pendency

of litigation before learned Civil Court is also written with the condition that

after the litigation, the petitioners will execute the sale-deed but

astonishingly, the respondent namely Qasim Ali filed suit for specific

performance against the petitioners on 29.01.2010 during the pendency of the

litigation, without disclosing the fact that litigation was still pending about

the suit land, and succeeded in obtaining the ex-parte judgment & decree

dated 24.03.2011. Hence, the respondent failed to disclose the facts about

pendency of other litigation in plaint and also during evidence. None of

respondent’s witnesses including respondent in the suit deposed any

information about the pendency of suit. Onus to prove Issues No. 2 to 6 was

placed upon the respondent and in order to dislodge this burden, only

respondent namely Qasim Ali appeared as RW-1 and no one appeared on his

behalf to support him in proceedings under Section 12(2) CPC. The

respondent failed to initiate any proceedings against the petitioners like

summoning the alleged appointed counsel by the petitioners or sending the

wakalatnama alleged by the petitioners to handwriting expert. The evidence

produced by the respondent is neither convincing nor cogent to discharge the

onus. While Petitioner No. 1 appeared as AW-1 and produced Azhar Abbas

and Allah Yar as AW-2 & AW-3 who folly supported the contents of

petitioners’ application and without any variations or contradictions in their

statements.

4. In view of the foregoing discussion, this Court is of the

considered view that the learned Courts below have neither properly

evaluated the facts of the case nor the provisions of law. Hence, by accepting

this petition, the ex-parte judgment & decree dated 24.03.2011 and impugned

order & judgment, passed by the learned Courts below dated 26.03.2016 and

31.10.2017 in petitioners’ application under section 12(2) CPC are set-aside

with the direction to the learned trial Court to initiate fresh proceedings by

allowing the petitioners to file written statement and to allow the contesting

parties to produce oral as well as documentary and thereafter to pass

judgment & decree without being influenced by any observation made by this

Court or any other Court during the litigation between the petitioners and

respondent because no litigation is pending between the petitioners &

Mohammad Hayat, presently, as is argued/informed by the counsels. Either of

the contesting party can submit this order before the learned trial Court for

initiating fresh proceedings in the suit.

(Y.A.) Petition allowed

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