Form No.

HCJD/C-121
ORDER SHEET
LAHORE HIGH COURT, BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
W.P. No. 254 of 2014
Abdul Majeed etc. Vs. Salah ud Din

S.No. of Order/ Date of order/ Order with signature of Judge and that of parties or counsel where necessary
Proceeding proceeding

16.1.2014 Mian Muhammad Suleman Joiya, Advocate for the

petitioner.

Brief facts of the case are that Salahuddin

defendant/predecessor of the private respondents was owner of land

measuring one kanal comprising Killa No.7 Square No.165 Khewat

No.157 situated at Mazua Haimaity, Tehsil Bahawalpur on the basis

of sale deed dated 15.3.1981 which he agreed to sell to the petitioner

for a consideration of Rs.85,000/-vide agreement to sell dated

12.8.1993 and an earnest money of Rs.10,000/-was received, but the

said agreement was mutually rescinded on 24.11.1993 on enticement

of one Zahoor Hussain whereafter the original respondent re-agreed

to sell the same property against a consideration of Rs.90,000/- the

petitioners No.1 & 2 and two other persons namely Zahaoor Hussain

and Mst. Naseem Begum, who are husband and wife, in equal shares

of 5 marlas each and four instruments were executed on 24.11.1993.

The respondent after receiving further amount of Rs.20,000/-from the

petitioners handed over the possession of 10 marlas portion and

agreed to execute sale deed in their favour on 15.12.1993 after receipt

of balance consideration amount of Rs.10,000/-from them. On asking

the petitioners to perform part of the contract but in response thereto

the respondent took the stand that litigation was pending adjudication
W.P.No.254 of 2014 2

in this Court and injunctive orders regarding further alienation of the

land of bargain had been issued therein. He also suggested that in

order to get protected the rights of the petitioners, decrees for specific

performances of contract should be obtained and undertook that upon

decision of the writ petitions he would execute the title documents in

favour of the petitioners. In pursuance thereof, the petitioners

alongwith other buyers filed four independent separate suits for

specific performance of the agreements to sell dated 24.11.1993

wherein the defendant appeared through his counsel, who submitted a

conceding written statement and made consenting statement while

accepting claim of the petitioners and others in consequence whereof

all the suits were decreed vide judgments and decrees dated

09.10.1994.

2. Then the defendant on 14.5.2008 agreed to sell the land

possessed by the petitioners with Muhammad Waseem etc, who

dispossessed the petitioners whereupon it came to their knowledge

that the litigation pending before the High Court had already been

decided as back as on 26.11.1998.

3. Feeling aggrieved the petitioners filed execution petitions

before the learned Executing Court whereas the defendant on

17.9.2008 moved two separate applications u/s 12(2) CPC for setting

aside of the judgments and decrees dated 09.10.1994, in which

execution of agreements to sell was denied and the judgments and

decrees were claimed to have been obtained by playing fraud and

misrepresentation on the basis of conceding written statement as well

as the consenting statement alleged to have been made by the

W.P.No.254 of 2014 3

defendant. The petitioners contested these applications by filing

replies, who raised preliminary objection regarding maintainability of

the applications u/s 12(2) CPC and prayed for its dismissal by

invoking the provisions under Order VII Rule 11 CPC.

4. The learned trial court vide orders dated 16.2.2010

proceeded with the trial thereof while framing certain issues. The

petitioners preferred two revision petitions against these orders of the

learned trial court, which revision petitions have been dismissed by

the learned Additional District Bahawalpur vide a consolidated

judgment dated 29.10.2013. Hence the instant writ petition.

5. It is contended by the learned counsel for the petitioners

that the defendant had never disputed the judgments and decrees, his

signatures on the consenting statement or on the Wakalat Nama, that it

is well settled principle of law that where a fact/proceedings and

action is not specifically disputed or denied, it amount to admission

thereof, that where a party fails or omits to give and plead the

particulars of so called fraud through impersonation or

misrepresentation, such type of pleadings never disclose any cause of

action in terms of provisions of Order VII Rule 11 of CPC, that the

applications filed by the defendant u/s 12(2) CPC were time barred,

that the orders dated 16.2.2010 passed by the learned trial court and

29.10.2013 passed by the learned Additional District Judge are against

law, facts and result of misreading and non reading of the record,

hence the both the learned courts below have committed material

irregularities while passing the impugned orders, which are liable to

be set aside by allowing this writ petition.

W.P.No.254 of 2014 4

6. Arguments heard and the documents appended with the

writ petition perused.

7. No doubt there is plethora of judgments that the

application filed u/s 12(2) CPC can be rejected summarily, if the

element of fraud alleged to have been played in obtaining the

judgment/order has not been specifically described in comprehensive

form. However, if in the application under S.12(2), C.P.C. serious

allegations of forgery, fraud, misrepresentation and lack of

jurisdiction have been raised, then obviously such controversy

between the parties could only be resolved after framing of issues and

recording the evidence. A safe reliance can be placed on 2008 SCMR

236. It is a settled principle of law that a decree alleged to have been

obtained collusively can be challenged u/s 12(2) CPC because it

amounts to fraud to have been practiced in obtaining such a decree.

8. The judgments and decrees, which are the bone of

contention in the petitions under section 12(2) CPC had been passed

on 9.10.1994 while the execution petitions were filed with the delay

of 14 years in the year 2008 and admittedly the petitioners-decree

holders are not in possession of the suit property on the plea that they

were dispossessed by Muhammad Wasim etc. with whom the

defendant subsequently struck sale of the said land in the year 2008.

Moreover, the plaints filed by the petitioners did not disclose that any

controversy regarding the suit land was also sub judiced before this

court in the exercise of constitutional jurisdiction. As such the facts

and circumstances are not of such nature that no finger could be raised

upon its authenticity.

W.P.No.254 of 2014 5

9. A perusal of rule 11 of Order VII CPC made clear that it

pertains to suits and plaints in particular. Admittedly, there is a lot of

difference between a regular suit and an application u/s 12(2) of CPC

in their nature. The Rule 11 of CPC can be attracted only when a

plaint by itself does not disclose any cause of action, but it cannot be

attracted merely on the basis of the averment contained in the written

statement because the initial burden lays on the plaintiff/petitioner to

prove his case on the basis of assertions made by him in his pleadings

being factual in nature, which in the eye of law could not be decided

summarily. It is settled law that pleadings of the parties cannot be

taken as evidence when its maker is not even examined in its support

and cross examined by the opponent party. The applications u/s 12(2)

of CPC filed by the defendant contained serious allegations of fraud,

which cannot be decided without recording of evidence. Both the

learned courts below have dealt with the matter through the impugned

orders eminently on the valid reasons, which are not open to any

exception by this court in the exercise of constitutional jurisdiction the

scope whereof is narrower and restricted to the orders passed illegally,

against law and without jurisdiction.

10. In the light of above discussion, this writ petition being

merit less is hereby dismissed in limine.

(Ch. Muhammad Masood Jahangir)

Judge
Amjad