P L D 2013 Lahore 51
P L D 2013 Lahore 51
Before Shujaat Ali Khan, J
MAULA BAKHSH---Petitioner
Versus
MUHAMMAD HUSSAIN and others---Respondents
Civil Miscellaneous No.986 of 2006 in Civil Revision No.397-D of 2001, decided on 10th September, 2012.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Bar to further suit---Jurisdiction of court to entertain application under S.12(2), C.P.C.---Scope---Court having finally adjudicated matter could entertain such an application.
Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Abid Kamal v. Mudassar Mustafa 2000 SCMR 900; Province of Punjab v. Muhammad Irshad Bajwa 1999 SCMR 1555; Khawaja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516; Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564 and Secretary Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 rel.
(b) Civil Procedure Code (V of 1908)---
----Ss. 12(2), 115 & O.VII, Rr.1 & 11---Application under S.12(2), C.P.C. made to a court which had not finally adjudicated the matter---Rejection of such application under O.VII, R.11, C.P.C.---Scope---Such application could not be treated as plaint under O.VII, R.1, C.P.C. thus, court could not reject the same under O.VII, R.11, C.P.C.---Order of Trial Court rejecting such application would be nullity in the eyes of law, whereagainst revision petition, if filed, would be maintainable.
Salah-ud-Din v. Mst. Zia Farhat 1996 SCMR 1528 rel.
(c) Civil Procedure Code (V of 1908)---
----O. VIII, R.13 & S.12(2)---Decree passed without impleading a legal heir of deceased defendant---Application under S.12(2), C.P.C. for setting aside such decree---Maintainability---Failure of defendant to comply with provision of O.VIII, R.13, C.P.C. could not debar court to proceed with matter in absence of defendant’s heirs.
Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Abdul Hameed and others v. Jehan Khan and others 2004 MLD 501; Habib-ur-Rehman v.Shah Jehan and 21 others 2004 YLR 2088; Abdul Sattar v. Ibrahim and others PLD 1992 Kar. 323 and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi PLD 1980 BJ 9 ref.
(d) Civil Procedure Code (V of 1908)---
----S. 12(2)---Application under S.12(2), C.P.C., filing of---Limitation---Scope---When ground of fraud and misrepresentation were taken in such an application , then there would be no limitation for its filing.
(e) Civil Procedure Code (V of 1908)---
----O. VIII, R.13 & S.12(2)---Decree passed without impleading a legal heir of deceased---List of legal representatives was filed by defendant along with written statement without mentioning name of one of his sons---Decree was passed by Trial Court in favour of plaintiff after death of defendant without impleading said son as one of defendant’s legal heirs---Application under S.12(2), C.P.C. filed by said son of deceased defendant for setting aside such decree on the ground that he was required to be impleaded as necessary party by plaintiff, who concealed such fact from court---Validity---Failure of deceased defendant to comply with provision of O.VIII, R.13, C.P.C. while filing his written statement could not debar the court from proceeding with the matter in absence of his legal heirs---Provision of O.VIII, R.13, C.P.C. were not mandatory, rather directory in nature, thus, no penal action could be taken for non-compliance with said provision strictly---Plaintiff while filing amended plaint had arrayed other legal heirs of deceased defendant except the son in question thus, decree was obtained by concealing material facts from court---Application was accepted in circumstances.
Abdul Baseer and others v. Muhammad Hanif and others 2007 YLR 1952 and Mst. Allah Jawai v. Farid PLD 1952 Lah. 31 ref.
Muhammad Sajid v. Zaib-un-Nisa 2012 YLR 6 and Saghir Ahmad and others. v. Begum Akhtar Akhlaq Hussain and others 1987 SCMR 1923 rel.
Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Abdul Hameed and others v. Jehan Khan and others 2004 MLD 501; Habib-ur-Rehman v.Shah Jehan and 21 others 2004 YLR 2088; Abdul Sattar v. Ibrahim and others PLD 1992 Kar. 323 and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi PLD 1980 BJ 9 distinguished.
Ch. Naseer Ahmad for Petitioner.
Jawad-ul-Hassan for Respondents Nos. 1 to 3.
ORDER
SHUJAAT ALI KHAN, J.---By virtue of this petition under section 12(2), C.P.C., the petitioner has prayed for annulment of judgment dated 24-11-2004 passed by this court in Civil Revision No.397-D of 2001 by virtue of which the judgments and decrees dated 17-3-2001 and 12-12-2000 passed by the learned Additional District Judge, Rahimyar Khan and the learned Senior Civil Judge, Rahimyar Khan, respectively, were affirmed.
2. Briefly, the facts as gleaned out from the instant petition are that respondents Nos.1 to 3 filed a suit for possession against Muhammad Akram and others. Since Muhammad Akram died during pendency of the suit, his legal heirs were arrayed as defendants who filed their written statements. After framing issues the learned trial Court recorded evidence of the parties and finally decreed the suit on 12-12-2000. Feeling aggrieved by the said judgment and decree, respondents Nos.12, 13 and 14 in this petition filed an appeal before the District Judge Rahim Yar Khan which was dismissed by the learned Additional District Judge, vide judgment and decree dated 17-3-2001 against which respondents Nos.1, 12, 14 and others filed the titled civil revision before this Court which came up for final hearing on 24-11-2004 when the same was dismissed. The petitioner who is son of Muhammad Akram, against whom originally the suit was filed, moved a petition under section 12(2), C.P.C. before the learned trial Court which was rejected under Order VII, Rule 11, C.P.C. as not maintainable vide order dated 28-3-2006. Thereafter, the petitioner moved the instant petition for the self same relief.
3. Learned counsel for the petitioner contends that the petitioner not only being one of the legal heirs of Muhammad Akram was a necessary party but he was also required to be impleaded by the respondents on account of being in possession of a chunk of land in Rectangle No.141 of 2010 Khata No.67/64; that as respondents Nos.1 to 3 did not array the petitioner before the trial Court as well as before the Appellate Court and this Court, the judgment and decree is result of fraud; that the learned trial Court illegally rejected the application under Order VII, Rule 11, C.P.C. as the said provisions are not applicable to a petition under section 12(2), C.P.C.; that at the most the learned trial court could return the petition for its presentation before the appropriate forum; that though valuable rights of the petitioner were involved in the litigation but all the drama was played by the respondents at his back just to deprive him of the same; that the petitioner remained unaware about the proceedings before the trial court, appellate court and before this court and he only came to know when execution petition was filed against him and others and that as the impugned order has been obtained from this Court by suppressing material facts, the same is not sustainable. In addition to his oral submissions learned counsel has also referred to the cases of Salah-ud-Din v. Mst. Zia Farhat (1996 SCMR 1528), Abdul Baseer and others v. Muhammad Hanif and others (2007 YLR 1952) and Mst. Allah Jawai v. Farid (PLD 1952 Lahore 31).
4. As respondents Nos.4 to 14 did not appear before this Court despite their substitutive service by way of proclamation in daily “Express” Rahim Yar Khan dated 5-6-2012, they were proceeded against ex parte on 18-6-2012.
5. On the other hand, learned counsel for respondents Nos.1(i) to 1(vi), 2(i) to 2(viii) and 3 contends that since the order regarding rejection of the petition under section 12(2) of C.P.C., filed by the petitioner before the trial court, was appealable, he should have challenged the said order before the higher forum instead of filing the instant petition; that it was duty of the predecessor-in-interest of the petitioner to file list of his legal heirs while appearing before the trial Court, therefore, no fault can be attributed to the respondents/their predecessors; that since the predecessor-in-interest of the petitioner not only withdrew civil revision filed by him in the suit for declaration but also withdrew the same as a result, the mutation sanctioned in favour of predecessor-in-interest of the petitioner was cancelled, resultantly, the entire superstructure based thereon fell to the ground; that it is not possible that the petitioner was unaware about pendency of the proceedings especially when the other brothers and sisters of the petitioner were hotly pursuing the matter right from the trial court uptil this Court; that the instant petition has been filed to reopen the case which has been decided once for all; that if the predecessor of the petitioner did not file list of his legal representatives along with his written statement or failed to nominate a person to intimate the court about the death of defendant and to furnish the court with necessary particulars and addresses of his legal representatives, the court can proceed with the suit notwithstanding the impleadment of legal heirs of such respondents. To substantiate his contentions, learned counsel has referred to the cases of Lalan Bibi and others v. Muhammad Khan and others (2007 SCMR 1193), Abdul Hameed and others v. Jehan Khan and others (2004 MLD 501), Habib-Ur-Rehman v. Shah Jehan and 21 others (2004 YLR 2088), Abdul Sattar v. Ibrahim and others (PLD 1992 Kar. 323) and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi (PLD 1980 B J 9).
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents appended with this petition as well as the captioned civil revision in addition to having a glance on the case-law cited at the bar.
7. To resolve the controversy, in my opinion, perusal of the relevant section would be conducive, which for facility of reference is reproduced herein below:--
“12(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”
A
A perusal of the afore-quoted subsection (2) shows that when the validity of judgment, decree or order is challenged on the plea of fraud, misrepresentation or for want of jurisdiction, the person concerned should move an application before the court which passed the final judgment, decree or order. The words ‘the Court which passed the final judgment, decree or order’ means the court which finally adjudicated the matter. The said question was beautifully summed up by the apex court of the country in the cases reported as Faisalabad Development Authority v. Raja Jahangir Nasir and others (2004 SCMR 1247), Abid Kamal v. Mudassar Mustafa (2000 SCMR 900), Province of Punjab v. Muhammad Irshad Bajwa (1999 SCMR 1555), Khawaja Muhamamd Yousaf v. Federal Government and others (1999 SCMR 1516), Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 564) and Secretary Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171). In the case of Faisalabad Development Authority (supra) the apex court of the country has inter alia held as follows:--
“It should not be disputed, that application under section 12(2), C.P.C. was wrongly filed before a Division Bench against judgment rendered in Intra-Court Appeal and that it ought to have been filed before a Single Bench that decided original writ petition, for, an application of the nature is always filed before the Court that rendered final judgment.”
The nutshell of the discussion made in this paragraph is that the petition filed by the petitioner before the trial Court was rightly held not maintainable.
B
8. Now the question surfaces on the scene is that when the petition was not maintainable before the trial court whether it was obliged to reject the same under Order VII Rule 11 C.P.C. In this regard, I am of the humble opinion that the application under section 12(2), C.P.C. cannot be treated as plaint within the meaning of Order VII Rule 1 C.P.C., thus, the court is not empowered to reject the same under Order VII, Rule 11, C.P.C. In this regard, reference can be made to the case of Salah-ud-Din (supra) wherein apex court of the country has held that-–
“*****It is doubtful that the application under section 12(2), C.P.C. is a plaint within the meaning of Order VII, Rule 1, C.P.C. or the same can be dismissed under Order VII, Rule 11, C.P.C. on the grounds mentioned in application of the petitioner.”
C
In view of the clear cut observation of the apex court of the country, the order regarding rejection of the petition filed by the petitioner under section 12(2), C.P.C. before the trial court was nullity in the eye of law. Thus, the respondents cannot claim that this petition was not maintainable before this Court in view of the rejection of the earlier identical petition by the trial court.
D
9. Now while taking the most pivotal question as to whether the non-impleading of one of the legal heirs of a deceased/defendant is fatal or not or the same can be made a ground for pressing into service the provisions of subsection (2) of section 12, C.P.C., I am of the opinion that though under Order VIII, Rule 13 C.P.C. it is obligation of the defendant to file list of his legal representatives or to nominate a person to intimate the court of the fact of death of the defendant and to furnish court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of Order VIII, Rule 13, C.P.C. and in case of non-compliance the court can proceed with the matter without impleading the legal representatives of the said defendant but in the case in hand the position is totally different inasmuch as the plaintiffs while filing amended plaint arraying legal heirs of Muhammad Akram deceased did not mention the name of the petitioner though his other brothers and sisters were arrayed as defendants. On the one hand, the respondents are claiming that as Muhammad Akram did not file list of his legal representatives with his written statement, it was not necessary for the plaintiffs to implead his legal heirs rather the court could proceed with the matter in absence of the legal representatives of the said defendants but on the other hand while filing list of legal representatives of the said defendants excluded the name of the petitioner. Thus, the said act of the plaintiffs/respondents amount to concealment which ground is a valid one to challenge a judgment, decree or order under section 12(2), C.P.C.
F
E
D
10. Even otherwise, the provisions of Order VIII, Rule 13, C.P.C. are not mandatory rather they are directory in nature, no penal action can be taken in not conforming with such provisions strictly. This view has recently been taken in the case of Muhammad Sajid v. Zaib-Un-Nisa (2012 YLR 6) wherein it has been held as under:--
“Gathering the above arguments, it may be noted that the provision of Rule 13 of Order VIII are directory and not mandatory. No consequence or penalty is attached in not conforming with such provisions strictly…..”
Further, in the case of Saghir Ahmad and others v. Begum Akhtar Akhlaq Hussain and others (1987 SCMR 1923), the apex court of the country upheld the order of the learned trial Court declining to strike off the defence of the respondents on account of non-filing of list of legal heirs/representatives along with the written statement.
11. Insofar as the objection of the learned counsel for respondent No.3 that since the predecessor-in-interest of the petitioner opted to withdrew his declaratory suit while withdrawing a civil revision from this Court, the petitioner cannot claim anything on the basis of the mutation passed in his favour on the earlier mutation which was no more in the field is concerned, suffice it to observe that the same pertains to the merits of the case which cannot be discussed in these proceedings rather this court is to see as to whether the order procured by the respondents was result of concealment of fact or not.
12. Now adverting to case-law referred to by learned counsel appearing on behalf of respondents, I am of the view that the same is not applicable to the facts and circumstances of the present case for the reason that in the case of Mst. Lalan Bibi and others (supra) it has been held that in case of non-compliance of provisions of Order VIII, Rule 13, C.P.C. the court can proceed with the suit without impleading the deceased/defendant but it has nowhere mentioned in the said judgment that the plaintiff has the choice to array some of the legal heirs of the deceased and to leave the others. Insofar as the case of Abdul Sattar (supra) is concerned, the same deals with the question regarding setting aside of decree or for its rectification or modification but in the matter in hand when it has been established that the respondents procured the impugned order while concealing material facts, I am of the view that this case is of no help to them. As far as case of Abdul Hameed (supra) is concerned, no doubt a period of 3 years has been mentioned for challenging an order passed by a High Court under section 12(2), C.P.C. but there is plethora of judgments wherein it has been held that there is no limitation for filing a petition under section 12(2), C.P.C. when the ground of fraud and misrepresentation has been taken. Now coming to the case of National Commercial Bank Ltd. (supra), I am of the view that the same deals with the question of discharge of debts of a deceased out of deceased’s estate before distributing the same among the heirs. The case of Habib-ur-Rehman and 11 others (supra) is of no help to the petitioner in view of the afore-quoted judgments of the apex court of the country wherein it has been held that petition under section 12(2) C.P.C. lies before the court which finally adjudicated upon the matter instead of before the trial Court.
H
G
13. For what has been discussed above, it has been established that the respondents obtained the impugned order by concealing material facts from the court. Consequently, this petition is accepted and the impugned order is set aside. The titled civil revision would be deemed to be pending. The petitioner is directed to file amended memo of parties after arraying himself as petitioner. Office is directed to fix the said petition in the third week of October, 2012, under notice to the respondents through ordinary mode as well as under registered cover A/D in addition to Courier Service at the expense of the present petitioner to be deposited within three weeks.
C.M. NO.987 OF 2006
14. Since the main petition under section 12(2), C.P.C. has been accepted, this application is accordingly disposed of.
SAK/M-346/L Petition accepted.
Before Shujaat Ali Khan, J
MAULA BAKHSH---Petitioner
Versus
MUHAMMAD HUSSAIN and others---Respondents
Civil Miscellaneous No.986 of 2006 in Civil Revision No.397-D of 2001, decided on 10th September, 2012.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Bar to further suit---Jurisdiction of court to entertain application under S.12(2), C.P.C.---Scope---Court having finally adjudicated matter could entertain such an application.
Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Abid Kamal v. Mudassar Mustafa 2000 SCMR 900; Province of Punjab v. Muhammad Irshad Bajwa 1999 SCMR 1555; Khawaja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516; Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564 and Secretary Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 rel.
(b) Civil Procedure Code (V of 1908)---
----Ss. 12(2), 115 & O.VII, Rr.1 & 11---Application under S.12(2), C.P.C. made to a court which had not finally adjudicated the matter---Rejection of such application under O.VII, R.11, C.P.C.---Scope---Such application could not be treated as plaint under O.VII, R.1, C.P.C. thus, court could not reject the same under O.VII, R.11, C.P.C.---Order of Trial Court rejecting such application would be nullity in the eyes of law, whereagainst revision petition, if filed, would be maintainable.
Salah-ud-Din v. Mst. Zia Farhat 1996 SCMR 1528 rel.
(c) Civil Procedure Code (V of 1908)---
----O. VIII, R.13 & S.12(2)---Decree passed without impleading a legal heir of deceased defendant---Application under S.12(2), C.P.C. for setting aside such decree---Maintainability---Failure of defendant to comply with provision of O.VIII, R.13, C.P.C. could not debar court to proceed with matter in absence of defendant’s heirs.
Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Abdul Hameed and others v. Jehan Khan and others 2004 MLD 501; Habib-ur-Rehman v.Shah Jehan and 21 others 2004 YLR 2088; Abdul Sattar v. Ibrahim and others PLD 1992 Kar. 323 and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi PLD 1980 BJ 9 ref.
(d) Civil Procedure Code (V of 1908)---
----S. 12(2)---Application under S.12(2), C.P.C., filing of---Limitation---Scope---When ground of fraud and misrepresentation were taken in such an application , then there would be no limitation for its filing.
(e) Civil Procedure Code (V of 1908)---
----O. VIII, R.13 & S.12(2)---Decree passed without impleading a legal heir of deceased---List of legal representatives was filed by defendant along with written statement without mentioning name of one of his sons---Decree was passed by Trial Court in favour of plaintiff after death of defendant without impleading said son as one of defendant’s legal heirs---Application under S.12(2), C.P.C. filed by said son of deceased defendant for setting aside such decree on the ground that he was required to be impleaded as necessary party by plaintiff, who concealed such fact from court---Validity---Failure of deceased defendant to comply with provision of O.VIII, R.13, C.P.C. while filing his written statement could not debar the court from proceeding with the matter in absence of his legal heirs---Provision of O.VIII, R.13, C.P.C. were not mandatory, rather directory in nature, thus, no penal action could be taken for non-compliance with said provision strictly---Plaintiff while filing amended plaint had arrayed other legal heirs of deceased defendant except the son in question thus, decree was obtained by concealing material facts from court---Application was accepted in circumstances.
Abdul Baseer and others v. Muhammad Hanif and others 2007 YLR 1952 and Mst. Allah Jawai v. Farid PLD 1952 Lah. 31 ref.
Muhammad Sajid v. Zaib-un-Nisa 2012 YLR 6 and Saghir Ahmad and others. v. Begum Akhtar Akhlaq Hussain and others 1987 SCMR 1923 rel.
Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Abdul Hameed and others v. Jehan Khan and others 2004 MLD 501; Habib-ur-Rehman v.Shah Jehan and 21 others 2004 YLR 2088; Abdul Sattar v. Ibrahim and others PLD 1992 Kar. 323 and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi PLD 1980 BJ 9 distinguished.
Ch. Naseer Ahmad for Petitioner.
Jawad-ul-Hassan for Respondents Nos. 1 to 3.
ORDER
SHUJAAT ALI KHAN, J.---By virtue of this petition under section 12(2), C.P.C., the petitioner has prayed for annulment of judgment dated 24-11-2004 passed by this court in Civil Revision No.397-D of 2001 by virtue of which the judgments and decrees dated 17-3-2001 and 12-12-2000 passed by the learned Additional District Judge, Rahimyar Khan and the learned Senior Civil Judge, Rahimyar Khan, respectively, were affirmed.
2. Briefly, the facts as gleaned out from the instant petition are that respondents Nos.1 to 3 filed a suit for possession against Muhammad Akram and others. Since Muhammad Akram died during pendency of the suit, his legal heirs were arrayed as defendants who filed their written statements. After framing issues the learned trial Court recorded evidence of the parties and finally decreed the suit on 12-12-2000. Feeling aggrieved by the said judgment and decree, respondents Nos.12, 13 and 14 in this petition filed an appeal before the District Judge Rahim Yar Khan which was dismissed by the learned Additional District Judge, vide judgment and decree dated 17-3-2001 against which respondents Nos.1, 12, 14 and others filed the titled civil revision before this Court which came up for final hearing on 24-11-2004 when the same was dismissed. The petitioner who is son of Muhammad Akram, against whom originally the suit was filed, moved a petition under section 12(2), C.P.C. before the learned trial Court which was rejected under Order VII, Rule 11, C.P.C. as not maintainable vide order dated 28-3-2006. Thereafter, the petitioner moved the instant petition for the self same relief.
3. Learned counsel for the petitioner contends that the petitioner not only being one of the legal heirs of Muhammad Akram was a necessary party but he was also required to be impleaded by the respondents on account of being in possession of a chunk of land in Rectangle No.141 of 2010 Khata No.67/64; that as respondents Nos.1 to 3 did not array the petitioner before the trial Court as well as before the Appellate Court and this Court, the judgment and decree is result of fraud; that the learned trial Court illegally rejected the application under Order VII, Rule 11, C.P.C. as the said provisions are not applicable to a petition under section 12(2), C.P.C.; that at the most the learned trial court could return the petition for its presentation before the appropriate forum; that though valuable rights of the petitioner were involved in the litigation but all the drama was played by the respondents at his back just to deprive him of the same; that the petitioner remained unaware about the proceedings before the trial court, appellate court and before this court and he only came to know when execution petition was filed against him and others and that as the impugned order has been obtained from this Court by suppressing material facts, the same is not sustainable. In addition to his oral submissions learned counsel has also referred to the cases of Salah-ud-Din v. Mst. Zia Farhat (1996 SCMR 1528), Abdul Baseer and others v. Muhammad Hanif and others (2007 YLR 1952) and Mst. Allah Jawai v. Farid (PLD 1952 Lahore 31).
4. As respondents Nos.4 to 14 did not appear before this Court despite their substitutive service by way of proclamation in daily “Express” Rahim Yar Khan dated 5-6-2012, they were proceeded against ex parte on 18-6-2012.
5. On the other hand, learned counsel for respondents Nos.1(i) to 1(vi), 2(i) to 2(viii) and 3 contends that since the order regarding rejection of the petition under section 12(2) of C.P.C., filed by the petitioner before the trial court, was appealable, he should have challenged the said order before the higher forum instead of filing the instant petition; that it was duty of the predecessor-in-interest of the petitioner to file list of his legal heirs while appearing before the trial Court, therefore, no fault can be attributed to the respondents/their predecessors; that since the predecessor-in-interest of the petitioner not only withdrew civil revision filed by him in the suit for declaration but also withdrew the same as a result, the mutation sanctioned in favour of predecessor-in-interest of the petitioner was cancelled, resultantly, the entire superstructure based thereon fell to the ground; that it is not possible that the petitioner was unaware about pendency of the proceedings especially when the other brothers and sisters of the petitioner were hotly pursuing the matter right from the trial court uptil this Court; that the instant petition has been filed to reopen the case which has been decided once for all; that if the predecessor of the petitioner did not file list of his legal representatives along with his written statement or failed to nominate a person to intimate the court about the death of defendant and to furnish the court with necessary particulars and addresses of his legal representatives, the court can proceed with the suit notwithstanding the impleadment of legal heirs of such respondents. To substantiate his contentions, learned counsel has referred to the cases of Lalan Bibi and others v. Muhammad Khan and others (2007 SCMR 1193), Abdul Hameed and others v. Jehan Khan and others (2004 MLD 501), Habib-Ur-Rehman v. Shah Jehan and 21 others (2004 YLR 2088), Abdul Sattar v. Ibrahim and others (PLD 1992 Kar. 323) and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi (PLD 1980 B J 9).
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents appended with this petition as well as the captioned civil revision in addition to having a glance on the case-law cited at the bar.
7. To resolve the controversy, in my opinion, perusal of the relevant section would be conducive, which for facility of reference is reproduced herein below:--
“12(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”
A
A perusal of the afore-quoted subsection (2) shows that when the validity of judgment, decree or order is challenged on the plea of fraud, misrepresentation or for want of jurisdiction, the person concerned should move an application before the court which passed the final judgment, decree or order. The words ‘the Court which passed the final judgment, decree or order’ means the court which finally adjudicated the matter. The said question was beautifully summed up by the apex court of the country in the cases reported as Faisalabad Development Authority v. Raja Jahangir Nasir and others (2004 SCMR 1247), Abid Kamal v. Mudassar Mustafa (2000 SCMR 900), Province of Punjab v. Muhammad Irshad Bajwa (1999 SCMR 1555), Khawaja Muhamamd Yousaf v. Federal Government and others (1999 SCMR 1516), Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 564) and Secretary Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171). In the case of Faisalabad Development Authority (supra) the apex court of the country has inter alia held as follows:--
“It should not be disputed, that application under section 12(2), C.P.C. was wrongly filed before a Division Bench against judgment rendered in Intra-Court Appeal and that it ought to have been filed before a Single Bench that decided original writ petition, for, an application of the nature is always filed before the Court that rendered final judgment.”
The nutshell of the discussion made in this paragraph is that the petition filed by the petitioner before the trial Court was rightly held not maintainable.
B
8. Now the question surfaces on the scene is that when the petition was not maintainable before the trial court whether it was obliged to reject the same under Order VII Rule 11 C.P.C. In this regard, I am of the humble opinion that the application under section 12(2), C.P.C. cannot be treated as plaint within the meaning of Order VII Rule 1 C.P.C., thus, the court is not empowered to reject the same under Order VII, Rule 11, C.P.C. In this regard, reference can be made to the case of Salah-ud-Din (supra) wherein apex court of the country has held that-–
“*****It is doubtful that the application under section 12(2), C.P.C. is a plaint within the meaning of Order VII, Rule 1, C.P.C. or the same can be dismissed under Order VII, Rule 11, C.P.C. on the grounds mentioned in application of the petitioner.”
C
In view of the clear cut observation of the apex court of the country, the order regarding rejection of the petition filed by the petitioner under section 12(2), C.P.C. before the trial court was nullity in the eye of law. Thus, the respondents cannot claim that this petition was not maintainable before this Court in view of the rejection of the earlier identical petition by the trial court.
D
9. Now while taking the most pivotal question as to whether the non-impleading of one of the legal heirs of a deceased/defendant is fatal or not or the same can be made a ground for pressing into service the provisions of subsection (2) of section 12, C.P.C., I am of the opinion that though under Order VIII, Rule 13 C.P.C. it is obligation of the defendant to file list of his legal representatives or to nominate a person to intimate the court of the fact of death of the defendant and to furnish court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of Order VIII, Rule 13, C.P.C. and in case of non-compliance the court can proceed with the matter without impleading the legal representatives of the said defendant but in the case in hand the position is totally different inasmuch as the plaintiffs while filing amended plaint arraying legal heirs of Muhammad Akram deceased did not mention the name of the petitioner though his other brothers and sisters were arrayed as defendants. On the one hand, the respondents are claiming that as Muhammad Akram did not file list of his legal representatives with his written statement, it was not necessary for the plaintiffs to implead his legal heirs rather the court could proceed with the matter in absence of the legal representatives of the said defendants but on the other hand while filing list of legal representatives of the said defendants excluded the name of the petitioner. Thus, the said act of the plaintiffs/respondents amount to concealment which ground is a valid one to challenge a judgment, decree or order under section 12(2), C.P.C.
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10. Even otherwise, the provisions of Order VIII, Rule 13, C.P.C. are not mandatory rather they are directory in nature, no penal action can be taken in not conforming with such provisions strictly. This view has recently been taken in the case of Muhammad Sajid v. Zaib-Un-Nisa (2012 YLR 6) wherein it has been held as under:--
“Gathering the above arguments, it may be noted that the provision of Rule 13 of Order VIII are directory and not mandatory. No consequence or penalty is attached in not conforming with such provisions strictly…..”
Further, in the case of Saghir Ahmad and others v. Begum Akhtar Akhlaq Hussain and others (1987 SCMR 1923), the apex court of the country upheld the order of the learned trial Court declining to strike off the defence of the respondents on account of non-filing of list of legal heirs/representatives along with the written statement.
11. Insofar as the objection of the learned counsel for respondent No.3 that since the predecessor-in-interest of the petitioner opted to withdrew his declaratory suit while withdrawing a civil revision from this Court, the petitioner cannot claim anything on the basis of the mutation passed in his favour on the earlier mutation which was no more in the field is concerned, suffice it to observe that the same pertains to the merits of the case which cannot be discussed in these proceedings rather this court is to see as to whether the order procured by the respondents was result of concealment of fact or not.
12. Now adverting to case-law referred to by learned counsel appearing on behalf of respondents, I am of the view that the same is not applicable to the facts and circumstances of the present case for the reason that in the case of Mst. Lalan Bibi and others (supra) it has been held that in case of non-compliance of provisions of Order VIII, Rule 13, C.P.C. the court can proceed with the suit without impleading the deceased/defendant but it has nowhere mentioned in the said judgment that the plaintiff has the choice to array some of the legal heirs of the deceased and to leave the others. Insofar as the case of Abdul Sattar (supra) is concerned, the same deals with the question regarding setting aside of decree or for its rectification or modification but in the matter in hand when it has been established that the respondents procured the impugned order while concealing material facts, I am of the view that this case is of no help to them. As far as case of Abdul Hameed (supra) is concerned, no doubt a period of 3 years has been mentioned for challenging an order passed by a High Court under section 12(2), C.P.C. but there is plethora of judgments wherein it has been held that there is no limitation for filing a petition under section 12(2), C.P.C. when the ground of fraud and misrepresentation has been taken. Now coming to the case of National Commercial Bank Ltd. (supra), I am of the view that the same deals with the question of discharge of debts of a deceased out of deceased’s estate before distributing the same among the heirs. The case of Habib-ur-Rehman and 11 others (supra) is of no help to the petitioner in view of the afore-quoted judgments of the apex court of the country wherein it has been held that petition under section 12(2) C.P.C. lies before the court which finally adjudicated upon the matter instead of before the trial Court.
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13. For what has been discussed above, it has been established that the respondents obtained the impugned order by concealing material facts from the court. Consequently, this petition is accepted and the impugned order is set aside. The titled civil revision would be deemed to be pending. The petitioner is directed to file amended memo of parties after arraying himself as petitioner. Office is directed to fix the said petition in the third week of October, 2012, under notice to the respondents through ordinary mode as well as under registered cover A/D in addition to Courier Service at the expense of the present petitioner to be deposited within three weeks.
C.M. NO.987 OF 2006
14. Since the main petition under section 12(2), C.P.C. has been accepted, this application is accordingly disposed of.
SAK/M-346/L Petition accepted.
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