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Civil Revisions Nos. 213 and 214 of 1982, decided on 25th May, 1986.

---0. XIV, R. 1(2)--Issues--Requirements--Test--Whatever is pleaded ay one party and denied by other party, does not necessarily form a subject-matter of an issue--Issues are those material propositions of law or fact about which parties are at variance according to their pleadings and determination whereof is necessary for effective and final disposal of cause.

---0. XIV, R. 1(2)--Material propositions--Meaning--Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

---Ss. 12(2), 115 s 0. XIV, R. 1--Revision--Material proposition- Decrees sought to be set aside by respondents under S.12(2), Civil Procedure Code, fraudulently obtained by petitioners as a result of collusion between petitioners and Advocates of respondents who filed a written statement on behalf of respondents in a declaratory suit of petitioner that land in dispute was sold by respondents to petitioner--In their application under S.12(2), Civil Procedure Code, respondents also made allegations that no consideration was received by them for alleged sale of land in dispute by them in favour of petitioners but this allegation had been collaterally made and was not required to be decided for disposal of applications under S.12(2), C.P.C.--Consideration being germane to contract of suit and that being not connected with fraud as alleged by respondents in their application under S.12(2), C.P.C., it could not be said that collateral allegation of respondents, that no consideration was paid by petitioner for alleged sale of land in dispute and denial of this allegation by petitioners, did constitute a material proposition for disposal of application under S.12(2), C.P.C., within meaning of sub-rules (2) & (3) of R.1 of O.XIV, C.P.C.--No issue was, therefore, required to be framed on the subject for purpose of applications under S.12(2), C.P.C.--Recording of any finding on this issue would certainly amount to prejudging main suits which had yet to be decided if applications under S.12(2), C.P.C. were allowed--Court below, held, was justified in deleting issue and orders of Court below in this regard would not suffer from any jurisdictional defect, illegality or material irregularity--Interference declined in , revision, in circumstances.

---S. 2--Sale, contract of--Consideration, held, germane to contract of sale.

Ch. Muhammad Hassan for Petitioner.

Amir Alam Khan and Zulfiqar Ali Bhatti for Respondents Nos. 1 to 7.

Nemo for Respondent No. 8.

Date of hearing: 7th May, 1986.

This judgment shall dispose of two civil revisions viz. Civil Revision No. 213 of 1982 and Civil Revision No. 214 of 1982, involving common questions of law and facts.

2. In case of Civil Revision No. 213 of 1982, Muneer Ahmad Khan petitioner brought a suit against respondents Nos. 1 to 5 for a declaration to the effect that he was owner in possession of land measuring 139 Kanals 15 Marlas, as described in detail in the plaint, which he allegedly purchased from the aforesaid respondents for Rs.33,82,515.42. This suit was filed on 17-7-1980. It was decreed on 27-7-1980 on the basis of written statement filed by Ameer Ali Malik, Advocate, who filed power of attorney executed in his favour by Muhammad Zafarullah Khan, respondent No. 6, general attorney of respondents Nos. 1 to 5.

3. In case of Civil Revision No. 214 of 1982, a similar suit was filed by Habib Ahmad Khan in respect of 26 Kanals 8 Marlas of land against Samiullah Khan and Muneer Ahmad Khan as also the Province of Punjab claiming that he had purchased this land for Rs.9,45,000. This suit was filed on 26-3-1980 and was decreed on 10-4-1980 on the basis of written statement filed by Malik Muhammad Saleem, Advocate, claiming to be the counsel for Muneer Ahmad Khan and Samiullah Khan.

4. Both the aforementioned judgments and decrees were challenged through two separate applications filed under section 12(2), C.P.C. on the grounds of fraud and misrepresentation etc. These applications were filed on 3-9-1980. The trial Court allowed both the applications on 22-9-1980, but while deciding F.A.Os. High Court set aside the judgments of the trial Court, allowing the applications under section 12(2), C.P.C. on 28-2-1981 and remanded the cases to be decided afresh after obtaining the written statements from the petitioners and after framing the issues and recording the evidence.

5. Thereafter, the written statements were filed and issues were framed on 23-6-1981 in both the cases. Issue No. 6 in both the cases pertained to payment of consideration price. It read: "Whether respondent No. 1 has paid the consideration for the suit land, if so, its effect on the present petition "

6. On 30-6-1981, Muneer Ahmad Khan filed an application seeking that better particulars be ascertained from the petitioners of applications under section 12(2), C.P.C. under Order VI, Rule 5 and Order VIII, Rule 9. read with section 151 of the Code of Civil Procedure. A notice was issued to the other parties of filing reply.

7. Instead of filing reply, the petitioners in applications under section 12(2), C . P. C. moved applications in both the cases on 5-7-1981 under section 151, C.P.C. read with Order XIV, Rule 5(2), C.P.C. for striking out issue No. 6 aforementioned. It has been alleged in the said applications that the aforementioned issue had been wrongly framed; although it pertained to the merits of the main suit, yet it had no bearing so far as the disposal of applications under section 12(2), C . E. C . was concerned; by recording findings on this issue the main cast- would be prejudged and the party against whom this issue would be decided would be at loss as such decision was like to operate as res judicata, although it was an important issue in the main suit.

8. The above applications were resisted by the petitioners -herein who pleaded that the opposite party in their applications under section 12(2), C.P.C. had challenged the validity of the decrees, inter alia, on the ground that no consideration was paid and, therefore, this issue did arise from the parties' pleadings and its decision was necessary for the disposal of applications under section 12(2), C.P.C.

9. The learned trial Court, after hearing the parties, vide its order. dated 28-7-1981 passed in both the cases, allowed the applications of the respondents herein and ordered the deletion of issue No. 6 aforementioned,

10. The order, dated 28-7-1981 passed by the learned trial Court in both the cases has been called in question through the under consideration Civil Revisions.

11. It has been argued on behalf of the petitioners in both the cases that issue No. 6 in both the cases arose out of the pleadings of the parties inasmuch as non-payment of consideration was mentioned as a ground of fraud while the present petitioners had pleaded in their replies to the applications under section 12(2). C.P.C. that they did pay the consideration through bank drafts, cheques and receipts etc.

12. Whatever is pleaded by one party and denied by the other does not necessarily form a subject-matter of an issue. The issues are those material propositions of law or fact about which the parties are at variance according to their pleadings and the determination whereof is necessary for the effective and final disposal of the cause.

13. According to provisions of Order XIV, Rulte 1(3) of the Code of Civil Procedure, each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Vide sub-rule (2) of rule 1 of Order XIV ibid. the material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

14. In the light of the above legal propositions, it has to be seen as to whether the allegations contained in the applications filed by the respondents under section 12(2), C.P.C. regarding non-payment of consideration and assertion by the present petitioners that they paid the consideration through cheques, drafts and receipts etc. constituted a material proposition within the meaning of sub-rule (2) of Rule 1 of Order XIV (supra) for the disposal of applications under section 12(2). C.P.C.

15. As a matter of fact, the decrees obtained by the petitioners against the respondents which were sought to be set aside on the ground of fraud etc. under section 12(2), C.P.C. as per contentions of the respondents, were fraudulently obtained as a result of collusion by the petitioners with Ameer Ali Malik, Advocate in one case and with Malik Muhammad Saleem, Advocate in the other, although both these Advocates were not authorized to represent the respondents in the suits against them and thus the respondents were allegedly defrauded. Of course, in the applications under section 12(2), C.P.C. it has also been alleged that no consideration was received by the respondents for the alleged sale of the land in dispute by them in favour of the petitioners, but this allegation has been collaterally made and was not required to be decided for the disposal of applications under section 12(2), C.P.C. Obviously, consideration is germane to the contract of sale itself and it is not connected with the fraud as alleged by the respondents in their applications under section 12(2), C.P.C. In this view of the matter, it cannot be said that the collateral allegation of the respondents that no consideration was paid by the petitioners for the alleged sale of the land in dispute and the denial of this allegation by the petitioners does constitute a material proposition for the disposal of applications under section 12(2), C.P.C. within the meaning of sub-rules (2) and (3) of Rule 1 of Order XIV, C.P.C. No issue was, therefore, required to be framed on this subject for the purpose of applications under section 12(2), C.P.C. Recording of any finding on this issue would certainly amount to prejudging the main suits which have yet to be decided if the applications under section (2), C . P. C . are allowed.

16. For the foregoing reasons, it is concluded that through the impugned orders the learned trial Court was justified in deleting issue No. 6 and, therefore, the impugned orders do not suffer from any jurisdictional error, illegality or material irregularity within the meaning of section 115, C.P.C. warranting interference by this Court in exercise of OR revisional jurisdiction. Both the under consideration civil revisions are, therefore, dismissed with costs.

M. Y. H. Petitions dismissed.

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