WALAYAT ALI vs SAFEER HUSSAIN SHAH S — 2023 PLD 121 HIGH-COURT-AZAD-KASHMIR

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WALAYAT ALI VS SAFEER HUSSAIN SHAH S. 12(2)---Ex-parte judgement and decree, setting aside of---Respondent filed application under S. 12(2), C.P.C., for setting aside ex-parte decree allegedly obtained by fraud---Appellant/respondent filed objections therein---Civil Court framed issues in the light of pleadings, provided the parties opportunity to lead evidence and dismissed the application for want of proof and non-compliance of court order---District Court accepted the appeal of applicant---Held, that perusal of the order passed by the Trial Court revealed that the Civil Judge failed to appreciate the statements of the two witnesses produced by the applicant and simply stated that evidence produced by the applicant was insufficient, hence, the District Judge was justified to hold that the Trial Court had failed to appreciate the evidence led by the applicant in a legal fashion and passed the impugned order in a hasty manner---As some serious allegations had been levelled in the application which could only be resolved after recording evidence, therefore, the order recorded by the District Judge to allow the applicant by giving a chance to produce his entire evidence was justified irrespective of the fact that applicant was allowed sufficient opportunities to lead evidence---Law demands that cases should be decided on its merits and reasonable opportunity should be provided to the parties to prove their pleadings---Appeal was dismissed, in circumstances. Head NotesCase Description Citation Name: 2023 PLD 121 HIGH-COURT-AZAD-KASHMIRBookmark this Case WALAYAT ALI VS SAFEER HUSSAIN SHAH S. 12(2)---Order recorded by Court under S.12(2), C.P.C.---Second appeal---Appeal filed by appellant was not competent because under the law an appeal could be filed against an order or decree if the same was specifically provided in the statute---As no right of appeal is provided in the statute against an order recorded by the court while deciding an application under S. 12(2), C.P.C., thus, the order recorded by the Court under S.12(2), C.P.C., can be assailed through revision petition and an order recorded by the Court in revisional jurisdiction can be assailed only through writ petition---Though appeal before the District Judge against the order recorded by the Trial Court in the application under S. 12(2), C.P.C., was not competent however, it was now a well settled precept that if first appellate Court had entertained and decided the mater as an appeal then same could be treated as decision of revision which was competent---Thus, the appeal filed by appellant was also liable to be dismissed on the ground of its maintainability. Head NotesCase Description

WALAYAT ALI vs SAFEER HUSSAIN SHAH S — 2023 PLD 121 HIGH-COURT-AZAD-KASHMIR

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