Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 72 of 1988

Before :

Mr. Justice Muhammad Shafi Siddiqui

Applicant : Ghulam Qadir and others,

through Mr. Abdul Naeem assisted by Mr. Faisal Naeem Advocate.

Respondent : Ghulam Muhammad,

through Mr. Kalandar Bux Phulpoto Advocate.

Respondents : Province of Sindh and others,

through Mr. Abdul Ghaffar Memon, State Counsel.

Intervenor : Ghulam Abbas,

through Mr. Safdar Ali Bhatti Advocate.

Date of hearing : 17.09.2018.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. : Being aggrieved of the judgment and decree passed by Senior Civil Judge, Khairpur followed by dismissal of Civil Appeal No.39/1987 in pursuance of proceedings under Section 12 (2) CPC, the applicant has preferred this Revision Application. The suit originally filed by one Ghulam Muhammad as Suit No.316/1983 was decreed whereafter an application under Section 12(2) CPC was filed by Ghulam Qadir and others. The application was heard and the trial Court framed following three issues:

1. Whether the opponent obtained the decree on the basis of false representation of facts, incorrect assertion and fraud?

2. Whether the applicant is entitled to relief claimed?

3. What should the decree be?

(The issue No.1 is reproduced as framed by the trial Court.)

2. The evidence was recorded by the trial Court and the issues No.1 and 2 were decided in affirmative and consequently the application was allowed and the decree was “reviewed and amended”. (underlining is for emphasis). It is the case of the applicant that under no stretch of imagination a decree could be modified by allowing an application under Section 12(2) CPC. At the most, if the circumstances so warrant, the judgment and decree could be set aside and the parties be directed to contest the suit on merit. However, in the instant case, on the basis of evidence recorded, the trial Court not only allowed the application but also reviewed and amended the decree for which neither an issue was framed nor evidence was recorded.

3. Learned counsel for the respondent on the other hand has relied upon a judgment of this Court reported in YLR 1993 Civil 496 and submits that in an appropriate case the remedy under Section 12(2) CPC need not always be in the nature of setting aside the decree; rectification and modification thus can be ordered under Section 12(2) CPC. He submits that the Revenue authorities in terms of their orders have settled the controversy between the parties as to the entitlement of share of applicant and respondents which decision was only implemented in terms of the reviewed / amended decree. Such orders of the Revenue authorities were not impugned in the present proceedings.

4. I have heard all the learned counsel and perused the material available on record. The plaintiff (applicant) filed Suit No.316/1983 seeking declaration in respect of orders dated 03.03.1981 and 15.12.1981 by defendants No.3 and 2 respectively i.e. Additional Commissioner Sukkur Division Sukkur and Member Board of Revenue Sindh Hyderabad. Though at the relevant time, the private respondents were not impleaded but they had every right to move application under Section 12(2) CPC in case of a decree which was a result of fraud and misrepresentation, as alleged. The issues were framed by the trial Court also relate to a decree which was allegedly obtained by false and misrepresentation / fraud. Issues framed under Section 12(2) CPC do not pertain to the declaration in respect of the orders passed by Member Board of Revenue and Additional Commissioner Sukkur Division Sukkur. Hence in all fairness, the evidence that was recorded before the trial Court by the parties was in respect of issues framed and not beyond that. The issues and the evidence thereon, in relation to the entitlement of the parties and the validity of the orders of the Member Board of Revenue and Additional Commissioner Sukkur Division was yet to be recorded and that could have been possible only once the appropriate issues could have been framed on the basis of pleadings. No doubt, in appropriate cases where the result would be no different than what can be achieved without setting aside a decree, appropriate orders could have been passed but in the instant case there could have been a possibility that the applicant may have been able to achieve his goal after recording appropriate evidence on providing opportunity to record evidence, insofar as the orders of the Member Board of Revenue and Additional Commissioner Sukkur Division is concerned. However, in the instant proceedings such liberty was not given to the applicant nor such issues were framed and on the basis of evidence recorded under Section 12(2) CPC the decree was reviewed and amended which was not warranted in view of the peculiar facts and circumstances of the case.

5. No doubt, the dispute is pending since 1982 between the parties which should have been decided at the earliest, however, the modified decree as reviewed, is not sustainable under the law as it is beyond the mandate of the designated judge who was proceeding under Section 12(2) CPC only. I, therefore, in view of the above facts and circumstances, allow this Revision Application with direction to the trial Court to settle the issues between the parties and direct them to record evidence within three (03) months from today. The trial Court shall decide the pending lis within three (03) months with compliance report to this Court. The parties should not be given adjournments on frivolous grounds and they may be asked to proceed with the matter on daily basis in case circumstances so require.

Revision Application stands disposed of in the above terms.

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J U D G E

N.M.