2019 LHC 3308 Judgment: MUHAMMAD AMEER BHATTI, J:- Through this single judgment, I intend to decide Civil Revision No.185/2017 and Civil Revision No.186/2017 having involved common question of law and fact as both these matters have arisen from one and same Judgment dated 14.12.2016 whereby the learned Addl. District Judge dismissed the application under Section 12(2), C.P.C., filed on behalf of the petitioner for setting-aside the order dated 11.09.2014 through which petitioner’s appeal was withdrawn. Brief facts of the case are that a suit for confirmation of possession through specific performance instituted by the petitioner was dismissed on 25.02.2014 by the learned Civil Judge, against which he preferred an appeal, during pendency whereof, petitioner-appellant in presence of learned counsels for the parties got recorded his statement and thereby withdrew the appeal, which accordingly was dismissed as withdrawn vide order dated 11.09.2014. After about 5½ months of passing of said order i.e. on C.R. No.185/2017.
26.02.2015 the petitioner moved an application under Section 12(2), C.P.C. for seeking setting-aside of withdrawal order on the ground of misrepresentation and fraud. This application was contested by the respondents, however, the learned Additional District Judge dismissed the application under Section 12(2), C.P.C. vide order dated 14.12.2016; hence this revision petition.
Learned counsel for the petitioner contends that the order impugned is unsustainable in the eye of law. It is further contended that the Court, seized of the matter, has not provided any opportunity to the petitioner to lead evidence regarding stance
taken in his application under Section 12(2), C.P.C. which was mandatory inasmuch as the withdrawal order itself depicts that the appeal was withdrawn as the matter was referred to the Arbitrator, appointed with mutual consent of the parties outside the Court. It is further added that petitioner’s application under Section 12(2), C.P.C. could not be dismissed summarily without adopting the procedure provided in law;, hence the order impugned is liable to be set-aside. Download Judgment