Order Sheet
IN
THE HIGH COURT OF SINDH KARACHI
High Court Appeal No.210 of 2017
|
Date
|
Order with signature of Judge |
Hearing (Priority)
Case :
1. For orders
on Misc. No.769/2018 (U/O I R 10 CPC) :
2. For orders
on office objection as at “A” :
3. For hearing
of Main Case :
4. For hearing
of Misc. No.1245/2017 (Stay) :
19.10.2018 :
Ms. Rizwana Ismail, advocate for the appellant.
Mr. Mushtaq Quadri, advocate for respondent No.1.
Mr. Nazar Hussain Dhoon, advocate for
respondent No.2.
Mr. Muhammad Sajjad Abbasi, advocate for the intervener.
…………
Through
the impugned order dated 06.03.2017, J.M. No.77/2011 filed by respondent No.2
(DHA) under Section 12(2) CPC has been allowed by the learned single Judge. The
said application under Section 12(2) CPC was filed by respondent No.2 for
setting aside the consent decree passed on 28.02.2011 in Suit No.200/2011 filed
by the appellant against respondent No.1 for specific performance of contract
for sale of immovable property viz. Plot No.44-C, Nishat Lane No.12, Phase VI,
Defence Housing Authority, Karachi, measuring 200 sq. yds.
Perusal
of the impugned order shows that after discussing various authorities of the
Hon’ble Supreme Court and two reported cases of this Court and learned Lahore
High Court, it was held in the impugned order that “the consent decree obtained in
Suit No.200 of 2011 is nothing more than a mere agreement between the parties
and it has no enforceability against DHA or any other third parties” ; and on the basis of such finding
the application under Section 12(2) CPC was allowed “to the extent that the
consent decree between respondents 1 and 2 is held to have no bearing on any
third parties’ rights or compel DHA (or any other agency) to force transfer of
the disputed property in the name of the respondent No.1”. We are of the view that the above
finding could not be given on an application under Section 12(2) CPC as the
scope thereof was limited only to the extent of determining whether the consent
decree passed in the above Suit was the result of any fraud / misrepresentation
or not. We have noticed that no finding whatsoever with regard to the allegations
of fraud or misrepresentation allegedly committed at the time of passing of the
decree has been given in the impugned order while allowing the application
under Section 12(2) CPC.
In
view of the above, the impugned order is not sustainable. Accordingly, the same
is set aside with direction that the application under Section 12(2) CPC
bearing J.M. No.77/2011 be decided afresh strictly in accordance with law. The
appeal is allowed in the above terms with no order as to costs and listed
applications stand disposed of accordingly.
J U D G E
J U D G E
*HCA 210-18/19.10.2018/Short Orders DB/Court
Work/E*