2015 C L C 1428

2015 C L C 1428

[Lahore]

Before Amin-ud-Din Khan, J

Doctor IMRAN MANZOOR and another----Applicants

versus

Mst. NIGHAT BAHAR KHANUM and 10 others----Respondents

Civil Miscellaneous Nos.344 and 390 of 2005 in Civil Revision No.120 of 1992, heard on 1st April, 2015.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Application for setting aside judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Scope---Person whose rights were involved in the lis could file an application under S.12(2) of C.P.C., if judgment and decree had been procured by practising fraud, misrepresentation or was result of want of jurisdiction.

            Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 115---Revision---Scope---When proceedings of original suit were not before revisional court and only a remand order passed by first appellate court was before revisional court, such court had no jurisdiction to restore the decree passed by Trial Court and to affirm the same by its own judgment.

(c) Civil Procedure Code (V of 1908)---

----S. 12(2)---Application for setting aside judgment/decree on the grounds of fraud and misrepresentation under S.12(2), C.P.C.---Scope---If any order/judgment or decree had been procured without impleading parties whose rights were involved, such decree could not remain in field if it had injured the right of any person who was not a party to that proceedings.

            Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 ref.

            Ch. Muhammad Hussain Jahania and Ch. Muhammad Riaz Jahania for Applicants.

            Ch. Abdul Sattar Goraya for Respondents Nos.1 to 7.

            Mirza Saleem Baig, Addl. A.-G. Punjab for Respondents Nos.8 to 10.

            Respondent No.11: Ex parte.

            Date of hearing: 1st April, 2015.

JUDGMENT

            AMIN-UD-DIN KHAN, J.--- C.M. No.344 of 2005 is an application under section 12(2) of the C.P.C. filed by Dr. Imran Manzoor and Ahmad Adnan against the judgment dated 25-8-1994 passed by this Court in Civil Revision No.120 of 1992. The judgment dated 1-3-1987 passed by the learned Senior Civil Judge, Layyah and the judgment dated 19-9-1970 passed by the learned Civil Judge, Layyah have also been challenged in this application.

2.         C.M. No.390 of 2005 is an application under section 5 of the Limitation Act for condonation of delay. The case of applicants that when they came to know about the impugned judgment passed by this Court, they have forthwith filed the application before this Court. Learned counsel states that even otherwise the order has been procured by practising fraud and misrepresentation. Argues that not only the rights of applicants are involved in the lis, the rights of province of Punjab/Public are involved and huge public exchequer is involved. In this context, light can be taken from the judgment of august Supreme Court of Pakistan reported as "2003 SCMR 83 (Muhammad Bashir and another v. Province of Punjab through Collector of District Gujrat and others)" wherein the delay of 26 years was condoned by the apex Court when the valuable rights of government were involved. Therefore, in the light of this judgment of august Supreme Court the delay if any is condoned.

3.         The applicants have asserted their rights in ground No.IX of application under section 12(2) of the C.P.C., which is reproduced as under for reference:---

            "That the land for which plaintiff Bahar Khanum has obtained the decree dated 1-3-1987 and the order of this Hon'ble Court dated 25-8-1994 and is mentioned in the plaint dated 22-12-1982 has been allotted to various persons in the form of plots by the Housing Department and petitioner is also owning one plot measuring 1 Acre, 12 marlas, 8 sirsahies in open land of Block No.4 (149/7/8) thus, plaintiff Bahar Khanum has obtained decree and order by this Court in her favour without impleading the applicants as a party. The order of Director General, Housing and Physical Planning Department dated 26-12-1981 by which the plot measuring 8 kanals, 4 marlas was transferred to the applicant No.1 in Block No.4 Layyah and the which falls in rectangle No.168/149 Khasra No.7, 8 Block No.4 site plan Annex Q/1 and took the possession of the plot vide receipt dated 18-8-82 Annex Q/2. Since then the petitioner No.1 has built a bungalow on the plot and is residing therein. Now the petitioner No.1 has transferred the same in the names of petitioners Nos.2 and 3, his sons. Lease agreement dated 22-5-82 annex Q/3, has also been executed between the petitioner No.1 and TDA, thereafter the petitioner has been granted proprietary rights on 18-6-87 vide sale deed annex Q/4 and mutation No.1221 dated 26-4-94 annex Q/5 has also been sanctioned in favour of the petitioner No.1."

First I take the instant petition to the extent of challenging the judgment and decree dated 19-9-1970 passed in a suit filed by Mst. Bahar Khanum and Abdul Wahab against Abdul Rasheed etc., which was filed on 18-9-1970 and on consenting written statement filed by the general attorney of the defendants, same was decreed on 19-9-1970. No record has been produced by the applicants to show that the said decree was ever challenged before any forum. Though the learned counsel for the applicants has stated that in the connected Civil Revision No.1046 of 2011 titled "Abdul Wahab v. Province of Punjab etc." in para.4 line No.8 it has been mentioned that the judgment of lower appellate Court was set aside by this Court through Civil Revision No.120 of 1992. It seems that in the connected civil revision the facts have wrongly been noted. No record shows that the judgment and decree passed in a declaratory suit on 19-9-1970 was ever challenged before any forum. In this eventuality, this application under section 12(2) of the C.P.C. to challenge the judgment and decree dated 19-9-1970 is not competent before this Court. But the respondents Nos.1 to 7 base their claim upon that judgment and decree, therefore, scrutiny of said judgment and decree for determination of rights of the parties is necessary.

4.         So far as challenging the judgment and decree dated 1-3-1987 passed by the Senior Civil Judge, Layyah and the judgment and decree dated 25-8-1994 passed by this Court in Civil Revision No.120 of 1992 is concerned, I intend to dilate upon these judgments. There is no denial on the part of respondents of this application filed under section 12(2) of the C.P.C., with regard to the rights claimed by the applicants prior to the filing of suit.

5.         So far as locus standi to file application under section 12(2) of the C.P.C. is concerned, the applicants have stated that when their rights are involved in the proceedings and without impleading them as party the adjudication was bad in law. Light can be taken from the judgment of august Supreme Court of Pakistan reported as "1984 SCMR 586 (Ch. Jalal Din v. Mst. Asghari Begum and others)" wherein the apex Court has held that a person whose rights are involved in the lis can file an application under section 12(2) of the C.P.C. if the judgment and decree have been procured by practising fraud, misrepresentation or is result of want of jurisdiction, therefore, to the extent of locus standi filing of the application the applicants have undeniably made out a case that they have locus standi to file the application.

6.         Now I come to the facts of case. Mst Bahar Khanum filed a suit for permanent injunction against respondents Nos.8 to 11 stating that respondent No.11 who was defendant No.4 wants to interfere in the ownership and possession of plaintiff with the connivance of defendants Nos.1 and 2. The claim of plaintiff/revision petitioner was on the basis of a decree passed by the civil Court dated 19-9-1970. Learned counsel for the applicants stated that it was actually a collusive suit (subject-matter of this C.M.) intentionally filed without impleading the proper parties. The suit was dismissed by the trial Court on 20-1-1983 on the ground that it is premature. This order was set aside and the matter was remanded by the learned District Judge vide order dated 12-5-1983. On 1-9-1983 a joint written statement was filed raising the objection of maintainability of the suit but on facts the claim of plaintiff was accepted. Thereafter an application under section 151 of the C.P.C. was moved by the defendants' department on the ground that on behalf of Province of Punjab special government pleader was having no authority to appear, therefore, his appearance and filing of written statement was having no adverse effect under the law and defendant No.1 Province of Punjab prayed for permission to file a fresh written statement. The issues were framed and plaintiff's evidence was to some extent recorded but without recording the evidence of defendants while dismissing the application filed under section 151 of the C.P.C. suit was decreed vide judgment and decree dated 1-3-1987. The Province of Punjab as well as the Director Housing and Physical Planning preferred an appeal, which was accepted by the learned District Judge, Layyah vide remand order dated 9-3-1989, whereby the judgment and decree were set aside and the defendants/appellants were allowed to amend the written statement, their application under section 151 of the C.P.C. was accepted. The said remand order dated 9-3-1989 was challenged before this Court by filing FAO No.32 of 1989, which was subsequently converted into Civil Revision No.120 of 1992, which has been accepted vide judgment dated 25-8-1994, not only the remand order was set aside but the decree passed by the learned trial Court dated 1-3-1987 was restored. Though the defendants challenged the same before the august Supreme Court through CPLA No.132-L of 1995. The same was dismissed vide order dated 15-8-1995 passed by the august Supreme Court. Thereafter a review petition No.76-L of 1995 was filed, that too was dismissed on 26-11-1995. The forum of filing of application under section 12(2) of the C.P.C. has not been disputed by the respondents.

7.         Now the questions of limitation as well as legality of judgment passed by this Court and the factor of misrepresentation and fraud are in issue before this Court. The order of remand passed by the learned District Judge, Layyah was in issue before this Court. Even through filing of an appeal against the order which was subsequently converted into civil revision, the main suit was not before the Court, rather the remand order was before this Court. The question is that whether this Court was competent to uphold the decree passed by learned trial Court while setting aside the remand order. The answer is certainly in negative. When a lis i.e. the proceedings of original suit were not before the revisional Court and only a remand order passed by the learned first appellate Court was before this court, this Court was having no jurisdiction to restore the decree passed by the learned trial Court and to affirm the same by its own judgment. Furthermore, when the rights of applicants were involved in the lis and without impleading them by the plaintiff/revision petitioner procuring any order/judgment or decree that cannot remain in the field if it injures the right of any person who is not a party to that proceedings if he challenges the same through an application under section 12(2) of the C.P.C. This Court while dealing with the revision petition was having the powers to set aside the remand order challenged before it or to dismiss the revision by upholding the said order but this Court was having no jurisdiction to uphold the decree passed by the learned trial Court by setting aside the remand order. It prejudiced even the rights of parties to the suit because their right of hearing on merits at the stage of appeal was attached.

8.         For what has been discussed above, C. M. No.344 of 2005 is allowed and the judgment passed by this Court dated 25-8-1994 being not sustainable under the law is set aside while exercising jurisdiction under section 12(2) of the C.P.C. on the ground mentioned supra. The civil revision No.120 of 1992 titled "Mst. Bahar Khanum through L.Rs. v. Province of Punjab, etc." is restored to its original number. The revision petitioner to implead the applicants as respondents in the revision petition before next date of hearing and office to fix the revision petition for hearing on 21-4-2015.

RR/I-21/L                                                                                            Application allowed.