W.P.No.

3282-2010 1

W.P.No.3282/2010

Khadim Hussain Nazar Mohammad etc.

23.05.2012 Mian Shah Abbas Iqbal, Advocate for the petitioner.

Malik Maqbool Hussain Shakir, Advocate for the respondent.

The petitioner has assailed the vires of order dated

1.7.2009 passed by the learned Civil Judge Ist Class, Okara

whereby an application under section 12(2) CPC moved by

him was dismissed and judgment and decree dated 16.11.2009

passed by the learned Additional District Judge, Okara

whereby civil revision preferred by him met the same fate.

2. The facts in brief as emerge on perusal of the record are

that the respondent No.1 filed a suit for possession through

specific performance of the contract against the petitioner in

respect of land measuring 11-Kanals 3-Marlas owned by him

as per description given in para No.1 of the plaint. It was

contended that the defendant/petitioner entered into an

agreement to sell the said land vide deed dated 15.5.1998 for a

sum of Rs.80,000/- and received a sum of Rs.30,000/- as

earnest money. It was agreed that the sale proceedings would

be finalized till 5.1.1999 on payment of remaining sum of

Rs.50,000/-. Allegedly the defendant/petitioner refused to

receive the remaining price and get the mutation attested.

W.P.No.3282-2010 2

3. The defendant/petitioner contested the suit and denied

the execution of agreement deed. The suit was fixed for

11.5.1999 but on 14.4.1999 the file was put up in presence of

counsel for the parties and the defendant/petitioner made a

statement that he had no objection on passing of the decree in

favour of the respondent. Accordingly, the learned trial court

proceeded on to pass the judgment dated 14.4.1999, whereby

the suit of the respondent/plaintiff was decreed. On

11.10.2007, the petitioner moved an application under section

12(2) C.P.C. It is contended that he had already entered into

an agreement to sell with one Waris son of Malla in respect of

the same land vide deed dated 27.12.1997 and had received

total sale price of Rs.4,50,000/- but the plaintiff/respondent

filed the suit for specific performance of the contract with

ulterior motive in 1999. The petitioner engaged Mr.

Muhammad Aslam Javed, Advocate and contested the suit

through the written statement filed by him but the

respondent/plaintiff, who is a clever person, assured the

petitioner that he wanted to withdraw the suit and their

statements are to be recorded in this regard. He was in

collusion with the reader of the Court and under a plan got the

thumb impression of the petitioner affixed on the order sheet

and succeeded in obtaining a decree in his favour. He

contended that his new counsel was appointed by the

defendant/petitioner himself and his counsel Mr. Muhammad

W.P.No.3282-2010 3

Aslam Javed, Advocate was not present. It is stated that Waris

son of Malla filed the suit for specific performance of the

contract and also an application under section 12(2) C.P.C. , in

which the petitioner and respondent both were impleaded as

respondents so he could not file the application under section

12(2) C.P.C. earlier. With these averments, it was prayed that

the decree be set aside.

4. The respondent/decree-holder contested the petition. It

is urged that the petition is barred by time; that the petitioner

appeared in the court, made the statement in presence of his

counsel who also put his signatures on the same; that in the

previous application under section 12(2)C.P.C. it was

categorically held that the decree was not result of fraud and

mis-representation and the appeal filed by Waris in respect of

the findings of the court was also dismissed so the petitioner

has started the second round of litigation after expiry of almost

8 years.

5. The learned counsel for the petitioner has contended

that the petitioner had filed the written statement on 16.3.1999

and had categorically denied the execution of the agreement to

sell and receipt of the earnest money so there was no need for

him to make any admission on 14.4.1999 when the actual date

of hearing fixed by the court was 11.5.1999 and the file was

wrongly & illegally taken up on 14.4.1999; that due to

collusion between the respondent and reader of the Court his

W.P.No.3282-2010 4

statement was not correctly recorded and that the respondent

had assured him that the statement was being made for

withdrawal of the suit and that there was controversy between

the parties on material propositions of fact and law and as such

the petition could not have been decided without framing of

the issues and recording of the evidence and appraisal of the

same so both the courts below have committed material

irregularity and have failed to perform their duties in

accordance with law. In support of the contentions, reliance is

placed on 2011 SCMR 1013 and 2006 SCMR 1530.

6. On the other hand, the learned counsel for the

respondent has contended that the petitioner has not appended

the copy of application moved before the learned trial court

for recording his statement on which the orders were passed

for putting up the file on 14.4.1999 and in consequence

thereof the file was taken up on the said date in presence of the

learned counsel for the petitioner and his statement was

recorded in open court and he affixed his thumb impression in

token of its correctness. It is urged that the petitioner attained

the knowledge about the passing of the decree when he

appeared in the application under section 12(2) C.P.C filed by

Waris son of Malla his real maternal uncle but did not move

any application raising objection about the judgment and

decree at that time so the petition having been moved after

more than 8 years is hopelessly barred by time; that the

W.P.No.3282-2010 5

respondent had deposited the remaining sale price of

Rs.50,000/- in the government treasury under the orders of the

court and the petitioner had withdrawn the same so his

contention that the decree was passed due to any

misrepresentation is totally false and self concocted; that he

admits his presence and affixation of thumb impression on his

statement so the order to take up the file on 14.4.1999 does not

suffer from any illegality or infirmity; that in the earlier round

of litigation starting from the application under section 12(2)

C.P.C. filed by Waris son of Malla it has been held that the

decree was passed without any fraud or misrepresentation so

the application moved by the petitioner was hit by principle of

resjudicata. In support of the contentions, reliance is placed on

PLD 2004 SC 178, PLD 1987 SC 145, 2006 SCMR 1262,

1994 MLD 295(Lahore) and PLD 2005 SC 430.

7. The petitioner does not deny his appearance in the court

on 14.4.1999 and affixation of his thumb impression on the

order sheet. The contention that the file was wrongly taken up

on 14.4.1999 whereas the actual date of hearing was 11.5.1999

loses significance because he was present in the court

alongwith his counsel who had also put his signatures for

verification of the statement of the petitioner. The petitioner

has not appended the application on which the orders were

passed for fixation of the suit for 14.4.1999. It is also admitted

by him that he was a party in the application under section

W.P.No.3282-2010 6

12(2) C.P.C. filed by Malla his real maternal uncle and

attained knowledge of the impugned judgment and decree

passed against him on 22.7.1999. No explanation has been

given as to why he kept mum for a long period spreading over

8 years. No period of limitation is prescribed for presentation

of application under section 12(2) C.P.C so it falls under

Article 181 of the schedule of Limitation Act, 1908 and could

have been filed within three years of accruing of the right to

apply, which had accrued in favour of the petitioner on

22.7.1999. The petition was hopelessly barred by time. It is

also admitted that after recording the evidence in the

application filed by Waris son of Malla the learned trial court

had held that the impugned judgment and decree was not

result of fraud or misrepresentation. The petitioner and

respondent No.2 both were respondents in the above said

application under section 12(2) C.P.C. moved by Waris. The

findings of the learned trial court were confirmed by the

revisional court and attained finality. As the questions for

determination in the previous application under section 12(2)

C.P.C. and the application moved by the petitioner were

directly and substantially the same so the principle of

resjudicata as embodied in Section 11 C.P.C. was clearly

attracted in view of the previous orders of the courts of

competent jurisdiction. The petitioner had appeared in the

court. His statement was recorded by the learned Presiding

 W.P.No.3282-2010 7

Officer and it was read over to him and thereafter he put his

thumb impression. His identity card number is also written on

the same and his learned counsel had also put his signature. A

presumption of correctness is attached to the judicial

proceedings so the contention of the petitioner that the

statement was made for withdrawal of the suit has no legs to

stand because any statement for withdrawal of the suit was to

be made by the plaintiff/respondent and not by the

defendant/petitioner. In view of these facts which float on the

surface of the record, no issue was required to be framed so

impugned order is not infirm as contended by the learned

counsel for the petitioner. The case law cited at the bar by the

learned counsel for the petitioner is not applicable on the facts

of the present petition. Admittedly, the petitioner had also

withdrawn a sum of Rs.50,000/- deposited by the

respondent/plaintiff as remaining consideration in the

government treasury so he is estopped by his conduct to deny

the validity of the judgment and decree.

8. For the reasons supra, the petition is without merits and

the same is dismissed with costs.

(RAUF AHMAD SHEIKH)

JUDGE
Approved for reporting

JUDGE

Munir*