2021 C L C 746

[Peshawar]
Before Muhammad Naeem Anwar, J
Mst. BIBI ROZA----Petitioner
Versus
WALI-UR-REHMAN and 11 others----Respondents
Writ Petition No.2658-P of 2020, decided on 12th June, 2020.
(a) Civil Procedure Code (V of 1908)---
----S.12(2) & O.XXI, Rr.35(2), 99, 100 & 101---Specific Relief Act (I of 1877 ),
Ss.42 & 12---Suit for declaration and possession---Fraud or misrepresentation of
fact---Scope---Decree for possession from joint property, execution of ---Scope---
Petitioner, who was not impleaded in the suit instituted by the respondent/plaintiff,
filed application under S.12(2) of Civil Procedure Code, 1908, contending that
under the garb of decree , her owned/possessed property was intended to be taken
from her---Trial Court dismissed the application under S.12(2), C.P.C, without
framing issues and adducing the evidence---Held, that property owned by the
petitioner was not the subject matter of the suit filed by the respondent/plaintiff,
thus there was no decree against the petitioner's property---Record revealed that in
the suit-in-question , no decree for partition was passed on the basis of which the
specific portion of the property was to be handed over to the decree-holder ---
Decree for declaration, in the present case, was to the extent of shares in the joint
property and in terms of O.XXI R.35(2) of Civil Procedure Code, 1908, only
symbolic possession would be handed over to the decree-holder--- Contention of
the petitioner could not be treated as one under S.12(2), C.P.C, instead she had a
remedy under the provisions of O.XXI, Rr.99, 100 & 101 Civil Procedure Code,
1908 under which she, being a bona fide claimant, could approach to the Executing
Court by contending that no decree had been passed regarding her property---In
case of possession from joint property, the mode of possession would be symbolic
(by affixing a copy the warrant in some conspicuous place on the property etc.)
under O.XXI, R.35(2), C.P.C---Property of the petitioner was not the subject matter
in the suit-in-question, then there was no case of either fraud or misrepresentation
of fact---No illegality or infirmity was found in the impugned judgments and orders
passed by both the Courts below---Constitutional petition was dismissed in limine.
(b) Civil Procedure Code (V of 1908)---
----S.12(2)---Application under S.12(2) C.P.C---Framing of issues---Scope---
Though application under S.12(2) of C.P.C was to be treated as suit, however, in
every such application, there was no need to frame issues and to record evidence,
rather the same depended upon the facts of case.
Mst. Shabana Irfan v. Muhammad Sham Khan and others 2009 SCMR 40 and
Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR
296 ref.
 Arshad Jamal Qureshi for Petitioner.
ORDER
MUHAMMAD NAEEM ANWAR, J.----By filing of this writ petition under
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the
petitioner has assailed the judgment and order of learned Additional District Judge
XII, Peshawar , dated 30-01-2020, whereby his revision petition was dismissed and
consequently, the judgment and order of learned Civil Judge-I, Peshawar, dated 07-
03-2019 was upheld.
2. Facts of the aforementioned petition are that the Respondent No.1 has filed
Civil Suit No. 124/1 against respondents Nos.2 to 10, for declaration to the effect
that he is owner to the extent of 7-3/4 Marla of property bearing Khasras Nos.
1309/5, 1310/5, 1311/5, 1308/5, situated in Peshawar City, in the shape of plot
boundaries whereof were given in head note "A" of the plaint, to which respondents
Nos. 1 and 2 have got no concern, therefore, their claim pertaining to the said
property is in-effective upon his rights. Along with declaration, a decree for
perpetual injunction and in alternate decree for possession was also prayed for. The
said suit was decreed on 15-12-2010 and decree holder (respondent No.1) has filed
an application for execution in which the Executing Court has issued warrant of
possession. The contention of petitioner was that on the strength of decree in Suit
No.124/1, the decree holder wants to take physical possession of petitioner's
property. The petitioner came to know about the decree when allegedly Bailiff of
the Court proceeded to the spot, hence, he filed an application under section 12(2),
C.P.C on the ground that decree was the result of fraud and misrepresentation of the
facts. Learned trial court has dismissed the application against which the petitioner
filed revision, but the same too met the same fate.
3. Learned counsel for petitioner contended that the petitioner is owner in
possession of the property bearing khasra No. 1322/30 to the extent of one marla on
the strength of registered deed No. 1819 dated 18-09-2013, which was not the
subject matter of Suit No. 124/2, thus, the petitioner's owned and possessed
property could not be handed over to the decree holder. Next, he contended that the
decree in Suit No.124/1 was the result of fraud and misrepresentation, and both
these facts were requiring framing of issues and recording of evidence, but the
courts below have misread the record which resulted into miscarriage of justice,
therefore, the judgments and orders being perverse, wrong, illegal and against the
facts are liable to be set aside and the petitioner being necessary party in Suit No.
124/1 may be impleaded and be given an opportunity to protect her rights. In
support of his arguments, he relied on 2019 CLC 2016, 2019 CLC 847, 2015 CLC
931, 2019 CLC 1841, 2010 SCMR 500.
4. Arguments heard and record perused.
5. Admittedly, the property owned by the petitioner was not the subject matter of
Suit No. 124/1, thus, there was no decree against the petitioner's property. Record
reveals that in Suit No.124/1, no decree for partition was passed on the basis of
which the specific portion of the property was to be handed over to the decree
holder. Record also transpires that the decree for declaration was to the extent of
shares in the joint property and as per the provision of Order XXI, Rule 35(2) of
C.P.C., only symbolic possession would be handed over to the decree holder. The
main thrust of arguments of learned counsel for the petitioner was that under the
garb of decree in Suit No.124/1, the petitioner's owned and possessed property is
intended to be taken from him. In such a situation, the remedy has already been
provided by the legislature in the code of Civil Procedure 1908, under the provision
of Order XXI, Rules 99, 100 and 101 of C.P.C, whereunder the petitioner could
approach to the Executing Court by contending that no decree has been passed
regarding her property but in no case the contention of the petitioner could be
treated under section 12(2) of C.P.C. The provisions of Order XXI, Rules 99, 100
and 101 are reproduced as under: -
"99. Resistance or obstruction by bona fide claimant. Where the Court is
satisfied that the resistance or obstruction was occasioned by any person
(other than the judgment debtor) claiming in good faith to be in possession
of the property on his own account or on account of some person other than
the judgment debtor, the Court shall make an order dismissing the
application.
100. Dispossession by decree holder or purchaser. (1) Where any person other
than the judgment debtor is dispossessed of immovable property by the
holder of a decree for the possession of such property or, where such
property has been sold in execution of a decree, by the purchaser thereof, he
may make an application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall summon
the party against whom the application is made to appear and answer the
same.
101. Bona fide claimant to be restored to possession. Where the Court is
satisfied that the applicant was in possession of the property on his own
account or on account of some person other than the judgment debtor, it
shall direct that the applicant be put into possession of the property."
6. Likewise, in case of possession from joint property the mode of possession
would be under Order XXI, Rule 35(2), which is reproduced as under: -
Rule 35(2) Where a decree is for the joint possession of immoveable property,
such possession shall be delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by beat of drum, or other
customary mode, at some convenient place, the substance of the decree.
7. Turning to the contention of learned counsel for petitioner that before passing
the impugned order, neither issues were framed nor pro and contra evidence was
recorded. There is no cavil with the proposition that an application under section
12(2) of C.P.C. should be treated as a suit but it equally settled principle of law that
in every application under section 12(2) there is no need to frame issues and record
evidence, rather it depends upon the facts of case to case. In the case of Mst.
Shabana Irfan v. Muhammad Sham Khan and others 2009 SCMR 40, it was held by
the Hon'ble Supreme Court that: -
 "Needless to add that petition under section 12(2) of the C.P.C. can be decided
summarily by the learned Court, which has passed the final judgment,
decree or order in dispute, when there are admitted facts, documents
between the parties. There is no need to prolong the litigation, when the case
ex facie appears to have not been filed in a wrong jurisdiction, and when
fraud or misrepresentation was not involved therein the case or in the
transaction."
In case of Mrs. Amina Bibi through General Attorney v. Nasrullah and others
2000 SCMR 296, it was held by Supreme Court that: -
"while dealing with the allegations under section 12(2), C.P.C., it is not
incumbent upon the Court that it must, in all circumstances, frame issues,
record evidence and follow the procedure prescribed for decision of the suit
as held if Amiran Bibi v. Muhammad Ramzan (1999 SCMR 1334). In the
instant case, we have gone through the application under section 12(2),
C.P.C., moved by the petitioner and the material available on record. In view
of the facts and circumstances of the case and the judicial orders passed up
to this Court during the protracted litigation, the application filed by the
petitioner under section 12(2), C.P.C., was liable to be dismissed without
formulating issues and recording evidence of the parties."
8. When in Suit No. 124/1, the petitioner's property was not the subject matter
then there was no case of either fraud or misrepresentation of fact.
9. For the reasons discussed above, this petition being bereft of merit is hereby
dismissed in limine.
MQ/289/P Petition dismissed.
;