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Revision Applications Nos.31 and 55 of 1986, decided on 31st March, 1987.

---Ss.12(2) & 115--Fraud--Allegations of fraud and manipulation specifically levelled by petitioner against respondent and bailiff of Trial Court but such Court failing to go into allegations or to hold enquiry and disposing of application of petitioners on basis of an order formerly passed by Additional District Judge in a revision application filed by respondent against order of Trial Court whereby ex parte decree passed in suit was set aside--Trial Court, held, failed to exercise jurisdiction vested in it under S.12(2), Civil Procedure Code--Order of trial Court was set aside and case remanded for disposal according to law after holding a proper enquiry in allegations made by petitioner.

--Ss.12(2) & 115--Revision--Case remanded by High Court to trial Court for disposing of application filed by petitioner under S.12(2), C.P.C. and proceedings pending in respect of execution before Trial Court consequently becoming infructuous--Order of Trial Court passed in execution proceedings was set aside.

Khalilur Rehman for Applicant.

Niazy Abdul Khaliq for Respondent.

Date of hearing: 31st March, 1987.

By this judgment I propose to dispose of Rent Appeal No.31 of 1986 and Rent Appeal No.55 of 1986 as parties therein are common.

2. The facts of the case, briefly stated, are that the respondent who was an employee of the applicants filed a suit for declaration and mandatory injunction against the applicants as according to him he was entitled to a promotion to the post of Superintendent in the office of the Chief Engineer of the Applicants which had been denied to him by the applicants. During pendency of the case the applicants terminated the services of the respondent and aggrieved by such action, he filed a constitutional petition No.170 of 1977 before this Court.

3. After such petition was filed the record of the suit pending before the learned civil Court was called for by this Court. However, when the constitutional petition was disposed of by this Court vide judgment, dated 1-6-1981, the record of the case was sent. back to the learned civil Court which according to the applicant was received in the civil Court on 11-8-1981. Thereafter it appears that fresh notices were ordered to be issued to the parties to .the suit on Court motion. Although according to the record of the learned civil Court, the notice on the applicants had been served, but the case of the applicants is that the respondent colluded with the bailiff of the Court and the notice was not actually served on the applicants. However, on .the basis of the report of the bailiff that notice had been served, the learned civil Court proceeded EX PARTE against the applicants and passed an EX PARTE judgment and decree against the applicants. Thereafter, an execution application was filed and the learned trial Court by its order, dated 25-1-1986, ordered execution of the decree against the applicants by attachment of their bank account No.18 in National Bank of Pakistan, Civic Centre,' Branch.

4. It is the case of the applicants that they learnt for the first time about passing of EX PARTE decree against them when a notice in respect of execution of the decree was received by them from the learned civil Court. Thereafter, the applicants filed an application under Order 9 Rule 13 read with section 151, C.P.C. for setting aside the EX PARTE decree against them. Such application was allowed by the learned Civil Judge. However, the respondent filed revision against the order of the civil Court and the same was set aside by the learned Seventh Additional District Judge, Karachi, by his order, dated 8-10-1983.

5. Thereafter the applicants filed an application under section 12(2), C.P.C. as according to them, decree had been obtained against them by the respondent by means of fraud and manipulation and collusion with the bailiff of the civil Court. The learned Additional District Judge, however, did not entertain such application, but ordered the applicants to file such application before the learned trial Court. Thereafter the applicants moved an application under section 12(2) of C.P.C. before the learned trial Court which was dismissed by its vide order, dated 16-12-1985 which has now been impugned in Rent Appeal No.55 of 1986. The order passed by the learned trial Court on the execution application of the respondent, dated 25-1-1986, has also been impugned - by Rent Appeal No.31 of 1986.

6. I have heard Mr. Khalilur Rehman learned counsel for the applicant in both the revision applications and Mr. Khaliq A. Niazi, learned counsel for the respondent.

7. So far as the order, dated 16-12-1985 is concerned a perusal of the same clearly shows that the learned civil Court has failed to properly exercise its jurisdiction vesting in it under section -12(2), C.P.C. It had been clearly averred by the applicants in their application under section 12(2), C.P.C. that the EX PARTE order had been obtained by the respondent on the basis of- defective and false service report in respect of service of Court's notice on the applicants in collusion with the bailiff of the civil Court but as is clearly evident from the order of the learned civil Court, that it failed to go into such allegations and disposed of the application on the basis of order which had been earlier passed by the learned Additional District Judge on the revision application filed by the respondent against the order of the learned trial Court whereby EX PARTE decree passed in the suit had been set aside by it. It may be pointed out that the issues involved in the case decided by the learned Additional District Judge and the application filed by the applicants under section 12(2), C.P.C. were not the same as in the latter case, allegation of fraud and manipulation had been specifically levelled against the respondent and the bailiff of the learned civil Court. That required a proper inquiry to be held by the learned civil Court which as it appears, it failed to do. The learned civil Court was of the opinion that the matter had already been thrashed out before the learned Additional District Judge in connection with the aforesaid revision. However, this assumption was certainly not correct under the circumstances of the case. I am, consequently, in full agreement with the learned counsel for the applicants that the trial Court has failed to properly exercise jurisdiction vested in it i under section 12(2) of the C.P.C.

8. For the aforesaid reasons, Rent Appeal No.55 of 1986, is allowed and the order passed by the learned civil Court, dated 16-12-1985 is set aside. The case is remanded to the learned civil Court for disposal in accordance with law after holding a proper and independent inquiry in the allegations made by the applicants in their application under section 12(2), C.P.C.

9. So far as Rent Appeal No.31 of 1986, is concerned, since the case is being remanded to the learned trial Court for disposal of the application filed by- the applicants under section 12(2), C.P.C., the proceedings pending in respect of execution of the decree before the learned trial Court nave automatically become infructuous. Since the order impugned in Rent Appeal No. 31 of 1986, was passed in execution proceedings, the same in any case has to be set aside. Under the circumstances Rent Appeal No.31 of 1986 is also allowed and the order, dated 25-1-1986, passed by the learned trial Court is set aside. The two Civil Miscellaneous Applications filed by the applicants and the respondent respectively have also become infructuous and the same are, therefore, dismissed as such. There will be no order as to costs in view of the questions raised in these applications.

M.Y.H./K-13/K Case remanded.

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