P L D 2015 High Court (AJ&K) 7

P L D 2015 High Court (AJ&K) 7

Before Ghulam Mustafa Mughal, C J

PARVEEN AKHTAR and 3 others---Petitioners

versus

ADDITIONAL DISTRICT AND SESSION JUDGE, MUZAFFARABAD and others---Respondents

Writ Petition No.312 of 2013, decided on 30th October, 2014.

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

----Ss. 12(2) & 11, O.VII, R.11 & O.II, R.2---Limitation Act (IX of 1908), Ss.5, 14 & Art.181---Specific Relief Act (I of 1877), S.42---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Suit for declaration---Compromise decree, setting aside of---Limitation---Condonation of delay---Wrong forum, choice of---Effect---Negligence of litigant---Good faith---Due care and caution---Scope---Application for setting aside compromise decree was rejected by the Trial Court but case was remanded by the Appellant Court---Validity---Applicants had not been impleaded as party in the suit in which compromise decree was passed---Applicants being stranger could avail the remedy provided by law under S.12(2), C.P.C.---Applicants preferred to file a suit which was not competent in view of S.12(2),. C.P.C.---Applicant again filed an appeal after rejection of their plaint and they did not choose the right forum forthwith---When a party had chosen a wrong forum then he could not say that prosecution on his behalf was in good faith and he was entitled to the condonation of delay under Ss.5 & 14 of Limitation Act, 1908---Appellate Court was not competent to extend the benefit of choosing the wrong forum to the applicants and had travelled beyond the statutory law---Though no limitation was prescribed for moving the court under S.12(2), C.P.C. for setting aside a decree obtained through fraud and deception however, it had been ruled that Art.181 of Limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved person from the date when he got knowledge about such a decree or judgment---Applicants gained knowledge of compromise decree on 9-6-2004 and they filed application under S. 12)(2), C.P.C. on 24-2-2010 which was time-barred---Section 12(2), C.P.C. had barred independent suit for challenging a decree or judgment on the basis of fraud and had provided a speedy remedy for cancellation of such a decree---Trial Court and Appellant Court had rightly rejected the plaint filed by the applicants in the earlier round of litigation---Negligence of litigant could be condoned when his conduct was above board and he had not wasted any time when it was brought to his knowledge that he had chosen a wrong forum---Applicants went in appeal after rejection of plaint and remained prosecuting the same and it could not be said that prosecution of the case was in good faith and with due care and caution---Time so consumed could be extended under S.14 of Limitation Act, 1908 if forum was chosen with care and caution but in case of gross negligence no such condonation could be ordered---Impugned judgment passed by Appellant Court was illegal and arbitrary---Plaint was rejected under O.VII, R.11, C.P.C. and judgment was not passed on merits, therefore, neither the provisions contained in S.11 nor O.II, R.2, C.P.C. were attracted in the present case---Impugned judgment and order passed by the Appellate Court were declared to have been passed without lawful authority having no legal effect---Order passed on the application under S.12(2), C.P.C. filed on behalf of applicants by the Trial Court was restored---Writ petition was accepted in circumstances.

            Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Mrs. Razia Begum v. Cantonment Board and another 2000 YLR 2114; Mst. Naseeban Bibi v. Muhammad Yahya Khan and another 1986 SCMR 1964; Khushi Muhammad and 2 others v. The Province of Punjab and 2 others 1999 SCMR 1633; Azad Government and another v. Kashmir Timber, Corporation PLD 1979 SC(AJ&K) 139; Messrs Abdul Hamid v. Board of Intermediate 1991 MLD 672; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Mst. Hasina Kahtoon and others v. United Bank Limited and others 1993 MLD 1088; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Sh. Manzoor-ul-Haq v. Begum Tasleem Riaz Hamdani and others 1983 SCMR 1022; Abdul Jabbar v. Muhammad Latif and others 1986 CLC 603; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Saee and others v. The State 1984 SCMR 1068; Manzoor Hussain and 2 others v. Muhammad Ali and another, 1989 SCMR 1498; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Mian Azad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214; Abdul Samad v. Muhammad Ali and another PLD 1977 Lah. 687; Mst. Aziza Begum and 5 others v. Muhammad Hussain Khan and 4 others 1995 CLC 1578; Messrs Service Industries Limited v. Mst. Kalsoom Bai 1992 CLC 2165; Zeegum Saleem Khan and another v. Mir Alam and 6 others 2006 CLC 1228; Mst. Wazir Begum v. Additional District Judge and others 1997 CLC 1654; Habib-ullah v. Mehmood 1984 CLC 309; Mst. Rafiya Latif v. Secretary Education and another 2003 PLC (C.S.) 1530 and Sakhiullah v. Habib ullah and others 2011 SCR 133 ref.

            Mrs. Razia Begum v. Cantonment Board and another 2000 YLR 2114; Saee and others v. The State 1984 SCMR 1068; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Sardar Muhammad Azeem Khan and 5 others v. Muhammad Farooq Khan and 3 others PLD 2001 (AJ&K) 1; Monazah Parveen v. Bashir Ahmed and 6 others 2003 SCMR 1300; Tanveer Jamshad's case 1992 SCMR 917 and Government of Sindh and another v. Ch. Fazal Mehmood and another PLD 1991 SC 197 rel.

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

----S. 12(2)---Bar to file independent suit---Scope---Section 12(2), C.P.C. had barred independent suit for challenging a decree or judgment on the basis of fraud and it had provided a speedy remedy for cancellation of such a decree.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Decree obtained through fraud and deception, setting aside of---Limitation---No limitation provided for moving the court under S.12(2), C.P.C. for setting aside a decree obtained through fraud and deception however, it had been ruled that Art.181 of Limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved person from the date when he got knowledge about such a decree or judgment.

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

----S. 11 & O.VII, R.11 & O.II, R.2---Res judicata, principle of---Applicability---When plaint was rejected under O.VII, R.11, C.P.C. and judgment was not passed on merits then neither provisions contained in S.11, nor O.II, R.2, C.P.C. were attracted.

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

----O. VII, R.11---Suit/application, dismissal of---Scope---Under O.VII, R.11, C.P.C. suit or application could be dismissed when same was barred by law.

(f) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction of High Court---Scope---Such jurisdiction had been conferred on the High Court for correction of errors and procedural illegalities committed by the Special Tribunals or Courts in exercise of their jurisdiction---No embargo could be placed on the writ jurisdiction of High Court merely on the ground that like powers had been exercised by the court below.

            Bashir Ahmed Mughal for Petitioners.

            Manzoor Hussain Raja for Respondents.

ORDER

            GHULAM MUSTAFA MUGHAL, CJ.---The captioned writ petition is directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby judgment and order recorded by the learned Additional District Judge, Muzaffarabad on 13-2-2013 has been challenged for having been passed without lawful authority.

            Facts necessary to be noticed for the purpose of decision of the instant writ petition are that Mst. Parveen Akhtar, petitioner No.1, herein, filed a suit for declaration and possession in respect of suit land against Muhammad Saleem in the Court of Senior Civil Judge, Muzaffarabad on 16-4-2003. The suit was compromised, as a result whereof, a decree for declaration and possession-cum-perpetual injunction was granted in favour of Mst. Parveen Akhtar in respect of land measuring Khasra No.32 (old) renumbered as 237 min measuring 13 marlas 18 feet. The said land was transferred through a gift-deed by Mst. Parveen Akhtar to his minor son namely Farhad Bashir vide gift-deed dated 30-4-2004. On the basis of aforesaid gift deed, mutation was also entered in the revenue record on 2-8-2004. After obtaining the permission from the concerned authorities, a house has also been constructed by the petitioners. Fazal-ur-Rehman, Muhammad Irfan and Habib-ur-Rehman Sons of Mohib-Ullah filed a suit for declaration and perpetual injunction as well as cancellation of compromise decree dated 2-5-2003 in the Court of Senior Civil Judge, Muzaffarabad, claiming therein, that the suit land was in their share and Muhammad Saleem, defendant No.2, therein, has no concern with the same, therefore, compromise decree was a nullity in the eye of law for having been procured through fraud and deception. During pendency of the aforesaid suit on 18-4-2005, defendants/petitioners, herein, moved an application for rejection of the plaint on the ground that suit is barred. It was further craved in the application that as no details of fraud and forgery have been given in the suit, therefore, the same is not maintainable. After hearing the parties, the learned Senior Civil Judge vide his order dated 5-9-2005 rejected the plaint. Feeling aggrieved from this judgment, Fazal-ur-Rehman and others, filed an appeal before the learned District Judge, Muzaffarabad on 2-12-2005. After hearing both the parties, the learned District Judge vide his order dated 11-10-2008 dismissed the appeal. The judgment of the learned District Judge dated 11-10-2008 admittedly has attained finality for having not been challenged before any higher forum. On 24-2-2010, Fazal-ur-Rehman and others filed an application under Section 12(2) of the Code of Civil Procedure and challenged the legality and propriety of the compromised decree dated 2-5-2003. The defendants again moved an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the same. The learned Civil Judge Court No.1, Muzaffarabad vide judgment and order dated 31-1-2011 rejected the application. An appeal was taken to the learned District Judge, Muzaffarabad which was made over to the Additional District Judge. As the appeal was not competent, the learned Additional District Judge pleased to controvert the same into revision petition and decided the same as such vide his judgment and order dated 13-2-2013. The revision petition was accepted by him and the case was remanded to the learned Civil Judge Court No.1, Muzaffarabad for disposal on merits. It is the aforesaid judgment, the legality and propriety of which has been called into question through the instant writ petition.

            Mr. Bashir Ahmed Mughal, the learned Advocate appearing for the petitioners, vehemently argued that after the compromise decree, petitioner No.1 has constructed a house over the suit land, after obtaining permission from the Municipal Corporation and respondents, herein, have no locus standi to challenge the compromise decree because the land in question was in the share of Muhammad Saleem, who has competently transferred the same to Mst. Parveen Akhtar through compromise decree. The learned Advocate contended that the learned Additional District Judge, Muzaffarabad fell in error in holding, that principle of res judicata as well as provision contained in Order II Rule 2 of Civil Procedure Code was not attracted in the present case. He submitted that any decree which allegedly obtained on the basis of fraud and deception can only be challenged by making an application under section 12(2) of the Civil Procedure Code. Respondents, herein, chose a wrong forum and filed a declaratory suit which was dismissed and the order was maintained by the learned District Judge. The learned Advocate submitted that judgment and order of the learned District Judge have not been challenged before the next higher forum, therefore, the same has attained finality. He submitted that the learned Additional District Judge was not competent to reopen the past and closed transaction by exercising the jurisdiction not vested in him. The learned Advocate maintained that though the limitation can be condoned if sufficient cause is shown by a party but in the present case, passing of the decree was challenged by respondents, herein, through a regular suit and remain contesting up to the appeal before the District Judge. Even after the decision of the appeal, they have filed an application under Section 12(2) of the Code of Civil Procedure after a considerable time, therefore, this was a case of gross negligence and keeping in view the conduct of respondents, herein, no premium can be given to them for indolence and the learned Additional District Judge has exercised his jurisdiction while passing the impugned order in an arbitrary, capricious and unwarranted manner. The learned Advocate contended that the learned Additional District Judge has also ignored the well settled principle of law enshrined in Section 14 of the Limitation Act, and even the authorities relied upon by him in support of his order, laid down a different proposition of law. He argued that if a person has not prosecuted his cause diligently and in good faith, he cannot be benefited for the lapse he has committed. The learned Advocate submitted that vested right accrued in favour of petitioners, herein, cannot be snatched by exercising the discretion in an unwarranted manner and against the settled position of law. In support of his submissions, the learned Advocate placed reliance on the following case-law:--

(1)        Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65;

(2)        Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518;

(3)        Mrs. Razia Begum v. Cantonment Board and another 2000 YLR (Kar.) 2114;

(4)        Mst. Naseeban Bibi v. Muhammad Yahya Khan and another 1986 SCMR 1964;

(5)        Khushi Muhammad and 2 others v. The Province of Punjab and 2 others 1999 SCMR 1633;

(6)        Azad Government and another v. Kashmir Timber, Corporation, PLD 1979 SC(AJ&K) 139;

(7)        Messrs Abdul Hamid v. Board of Intermediate 1991 MLD (Lah.) 672;

(8)        Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050;

(9)        Mst. Hasina Kahtoon and others v. United Bank Limited and others 1993 MLD 1088;

(10)      Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305;

(11)      Sh. Manzoor-ul-Haq v. Begum Tasleem Riaz Hamdani and others 1983 SCMR 1022;

(12)      Abdul Jabbar v. Muhammad Latif and others 1986 CLC Lah. 603;

(13)      Hakim Muhammad Buta and another v. Habib Ahmed and others, PLD 1985 SC 153;

(14)      Saee and others v. The State 1984 SCMR 1068];

(15)      Manzoor Hussain and 2 others v. Muhammad Ali and another 1989 SCMR 1498;

(16)      Islam Din v. Allah Nawaz and others 1988 SCMR 2;

(17)      Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102;

(18)      Mian Azad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003;

            Mr. Manzoor Hussain Raja, the learned Advocate appearing for the respondents, contended that respondents, herein, were necessary party in the compromised decree and the plaintiffs/petitioners with mala fide intention have not impleaded them in line of respondents, therefore, they have rightly filed the application after getting knowledge about the fraudulent decree. The learned advocate further contended that though the respondents have filed a suit for declaration but the same was returned, therefore, there was not a hurdle for filing the application under Section 12(2) of the Code of Civil Procedure and the learned Additional District Judge has competently decided the revision and remand order was desirable and is in accordance with law. The learned Advocate argued that fraud and forgery cannot be protected on the ground of limitation because fraud vitiates the most solemnized proceedings and the case in hand is worst example of fraud and deception. The learned Advocate submitted that as the learned Additional District Judge has exercised the revisional jurisdiction, therefore, the same cannot be quashed in exercise of writ jurisdiction which is akin to the revisional powers. In support of his submissions, the learned Advocate placed reliance on the following case-law;--

(1) Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214;

(2) Abdul Samad v. Muhammad Ali and another PLD 1977 Lah. 687;

(3)        Mst. Aziza Begum and 5 others. v. Muhammad Hussain Khan and 4 others 1995 CLC SC (AJ&K) 1578;

(4)        Messrs Service Industries Limited v. Mst. Kalsoom Bai 1992 CLC 2165;

(5)        Zeegum Saleem Khan and another v. Mir Alam and 6 others 2006 CLC 1228;

(6)        Mst. Wazir Begum v. Additional District Judge and others 1997 CLC 1654;

(7)        Habib-ullah v. Mehmood 1984 CLC SC (AJ&K) 309;

(8)        Mst. Rafiya Latif v. Secretary Education and another 2003 PLC (C.S.) 1530

(9)        Sakhiullah v. Habib ullah and others 2001 SCR 133;

            In the first case, it was observed that for filing an application under Section 12(2) of the Civil Procedure Code limitation is three years.

            In the other cases, it was held that a revision can be controverted into appeal and vice versa.

            In Habibullah's case, it was observed that where a decree is without jurisdiction the same is a nullity in the eye of law and the same would be treated as non-existence.

            I have heard the learned Advocates for the parties and gone through the record of the case.

            After considering the record in light of the arguments of the learned Advocates representing the parties, I am of the view that two points emerge for decision of the case. Firstly, as to whether the application filed on behalf of respondents, herein, was time barred and the learned Additional District Judge was justified in condoning the period consumed by them in prosecuting the suit for declaration before the Civil Judge and thereafter, in appeal before the District Judge; Secondly, as to whether respondents have waived their right of filing application under Section 12(2) of the Civil Procedure Code by availing the remedy of filing suit. Admittedly, in the compromise decree, petitioners have not impleaded the respondents, herein, as party in the line of respondents, therefore, they being stranger can avail the remedy provided by law under section 12(2) of the Civil Procedure Code. Respondents, herein, preferred to file the suit which was not competent in view of section 12(2) of the Code of Civil Procedure. After rejection of the suit, they again filed an appeal before the District Judge and have not chosen the right forum forthwith. They have categorically stated in the application filed under section 12(2) of the Civil Procedure Code that they came to know about the fraudulent decree obtained by the petitioners on 9-6-2004 and they have filed application on 24-2-2010. Where a party has chosen a wrong forum then he cannot say that prosecution on his behalf was in good faith and he is entitled to the condonation of delay under sections 5 and 14 of the Limitation Act. The proposition has been examined in various cases by the Superior Courts of Pakistan. I would like to refer only following cases:--

            In Abdul Ghani's case [PLD 1977 SC 102], sections 2(7), 5 and 14 received the attention of the Supreme Court of Pakistan and after due deliberation, it was observed that benefit of section 14 cannot be allowed to a litigant who has not prosecuted his case in good faith. At page 7 of the report, it was observed as under:--

            ".... Section 14 permits the exclusion of time only for proceedings 'prosecuted in good faith', therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as; 'good faith' nothing shall be deemed to be done in good faith which is not done with due care and attention. "Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are, must depend on the facts and circumstances of each case and in Kunwar Rajendra Bahadur Singh's case (AIR 1937 PC 276), Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were very complicated. Similarly, an appellant can bring his case under section 5 if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed or to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the power forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence."

            The judgment was followed in Islam Din's case [1988 SCMR 2] and Raj Muhammad's case [1984 SCMR 1068]. In case titled Sardar Muhammad Azeem Khan and 5 others v. Muhammad Farooq Khan and 3 others PLD 2001 (AJ&K) 1) a division bench of this Court in the similar circumstances refused to condone the delay in absence of due care and caution and held that benefit of Section 14 of the Limitation Act cannot be extended to an indolent party. At page 4 of the report, it was observed as under:--

            "Section 14 of the Limitation Act is attracted only if it is shown that the wrong forum was chosen in good faith and not due to inadvertence. There is no dispute that the jurisdictional competence of the sub-Judge is up to Rs.25,000. Beyond this amount the suits can be filed in the Court of District Judge. Besides landed property, the house constructed therein was also sold to the vendee-respondents. The deceased plaintiff himself fixed the value of the house for the jurisdictional purpose and also for the purpose of the Court, fee, at Rs.60,000/-. In the light of these facts, it was easily ascertainable that in which court the suit should have been filed.

            In our view, the suit was filed by the deceased-plaintiff before a wrong court due to absence of due care and attention, therefore, the benefit under section 14 of the Limitation Act, cannot be given to the present appellants who are his legal descendants in this case."

            In case titled Monazah Parveen v. Bashir Ahmed and 6 others 2003 SCMR 1300 the delay was condoned by the District Judge by extending the benefit of Section 14 of the Limitation Act but the judgment was set aside by the apex Court observing as under:--

            "We have carefully examined the contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree, dated 19-10-1992 passed by learned Civil Judge, order, dated 3-9-1999 passed by learned District Judge and order impugned. We have not been persuaded to agree with learned Advocate Supreme Court on behalf of the petitioner that the judgment and decree dated 19-10-1992 passed by learned Civil Judge was ab initio void for the reason that it could not be declared as ab initio void because it was passed by a Court of competent jurisdiction. It is an admitted feature of the case that appeal preferred in the Court of learned District Judge was time barred and the application submitted under sections 5 and 14 of the Limitation Act has rightly been rejected as no plausible justification could be furnished on the basis whereof delay could have been condoned. It is also an admitted feature of the case that the provisions as contained in Order IX, Rule, 13, C.P.C. were invoked after a long period and that too could not be pursued vigilantly and vigorously which was ultimately dismissed for non-prosecution on 2-11-1993. No doubt that an application under section 12(2) Civil Procedure Code has been moved on 13-6-1994 after lapse of about seven months whereas the application under Order IX, Rule 13 Civil Procedure Code was dismissed on 2-11-1993. It may not be out of place to mention here that provisions under section 12(2) Civil Procedure Code were never intended to be a duplication of proceedings provided for in Order IX, Rule 13 Civil Procedure Code, and there was no lawful justification for filing the same. In this regard we are fortified by the dictum as laid down in case titled Ghulam Sarwar v. Muhammad Sarwar 1987 SCMR 1440. This Court was also approached but petition was withdrawn at later stage. The contention of learned Advocate Supreme Court that delay should have been condoned on the basis of wrong advice tendered by Advocate of the petitioner seems fallacious as it is well settled by now that delay could not be condoned on the basis of wrong advice tendered by Advocate of petitioner before it was essential for the petitioner to show that he followed the remedy before a wrong forum acting with due care and caution on the basis whereof delay could be condoned but the petitioner has failed to establish the said fact. If any authority is needed reference can be made to case titled Syed Haji Abdul Wahid and another v. Syed Siraj-ud-Din 1998 SCMR 2296."

            Thus, in my considered view, the Additional District Judge was not competent to extend the benefit of choosing the wrong forum to the plaintiffs/respondents, herein, and by doing so, the learned Additional District Judge has travelled beyond the statutory law. Though, there is no limitation fixed by the legislature for moving the Court for setting aside a decree obtained through fraud and deception under Section 12(2) of the Civil Procedure Code but it has been ruled that Article 181 of the Limitation Act, would be applicable which provides 3 years limitation to an aggrieved person from the date when he got knowledge about such a decree or judgment. In the present case, as stated above, the respondents gain knowledge regarding the compromise decree on 9-6-2004 and they filed the application under Section 12(2) of Civil Procedure Code on 24-2-2010, thus, the application was hopelessly time barred, as has been held in Tanveer Jamshad's case 1992 SCMR 917. Relevant observation recorded at page 925 of the report is as under;--

            "................ Therefore, in this case when application was filed by the intervener under section 12(2), Civil Procedure Code on the ground that he was inducted into the possession by the landlord and was fraudulently dispossessed by him, the application was maintainable and was filed in the right forum and should not have been dismissed on the ground that it was incompetent as the Intervener was not a party to the rent proceedings, which were between landlord and tenant (father of intervener).

            Question whether third party not party to the rent case can file application under section 12(2), C.P.C. before Controller came up for consideration in the Supreme Court before the same Bench, which is seized of the present appeal in unreported case of Mst. Fehmida Begum v. Muhammad Khalid and another in Civil Appeal No. 8-K of 1989, in which the unanimous conclusion is that a stranger to the proceeding or a third party in such circumstances has two remedies open to him. He can apply to the Rent Controller under section 12(2), C.P.C. for recall or review of order based on fraud or file a separate suit, but he can pursue only one remedy which he has initiated first or earlier in point of time, because having done so, his right to the other remedy shall stand forfeited in order to avoid conflict of opinion in two forums. In the instant case admitted position is that appellant No.1 namely, Tanveer Jamshed son of appellant No.2 tenant filed application under Order I, Rule 10, C.P.C. on 15-1-1981 in the court of Rent Controller, seeking permission to join the proceedings on the ground that he was lawful tenant of the flat and had already filed Suit No. 4141/80, which was subsequently renumbered as 206/85, for possession, declaration and injunction in the Court of Civil Judge, Karachi, in which he had obtained Interim stay restraining Landlord from alienating or parting with possession of the flat in dispute. We, therefore, hold that the suit was competently filed and his application under section 12(2), C.P.C. was liable to be dismissed by the Rent Controller on the ground stated, above."

            Again at page 926 of the report, it was opined as under:-

            "Section 12(2), C.P.C. does not provide specifically any period of limitation, hence, this application will be covered by Article 181 of the Limitation Act, which gives three years time from the date when right to sue accrues. In support of the proposition stated above, reference can be made to the case of Muhammad lqbal and others v. Muhammad Alamgir and others 1990 SCMR 1377. Net result is that in the instant case, application filed by the intervener under section 12(2), C.P.C. on the ground of fraud was within time.

            Third point for consideration in the leave granting order is as to what will be the effect of pendency of Suit No.4141/80 (New No.206/85), in the Court of VII-Civil Judge, Karachi. Answer to this question is already given at page No.16 of this judgment in the finding after examination of first point mentioned in the leave granting order. It is, therefore, reiterated that the said suit is filed in the court having jurisdiction and Intervener has to pursue that remedy in preference to application under section 12(2), C.P.C., before the Rent Controller, which has been dismissed."

            Again in a case titled Govt. of Sindh and another v. Ch. Fazal Mehmood and another [PLD 1991 SC 197], it was opined as under:--

            "The intention of the legislature in amending section 12, Civil Procedure Code by adding subsection (2) is to provide a substitute for such a suit against a judgment , decree or order obtained by fraud etc. since no limitation period is specifically provided for such an application, but in view of the above object, we are of the opinion that this will be governed by Article 181 of the Limitation Act, which is a residuary article for applications for which no period of limitation is provided elsewhere in the Limitation Act or by section 48 of the Civil Procedure Code. The period for such application, as provided in the Article is three year when the right to apply accrues i.e. the date when the judgment, decree or order was obtained by fraud, misrepresentation or without jurisdiction. But, if a judgment, decree or order is sought to be reviewed under section 114, C.P.C. on the grounds mentioned in Rule 1 of Order XLVII of the C.P.C. though the application is made under section 12(2), C.P.C. the period of limitation as provided in Article 173 of the Limitation Act, will be 90 days from the date of the judgment, decree or order except in cases specifically provided by Articles 161 and 162, which respectively deal with the review of the judgments and decrees of the Small Causes Court and the High Court."

            The contention of Mr. Manzoor Hussain Raja, the learned Advocate for the respondents that as the learned Additional District Judge has exercised the revisional jurisdiction, therefore, scope of writ petition is very limited is devoid of any force. The same like argument has been repelled /by a division bench of the Sindh High Court in Mrs. Razia Begum's case 2000 YLR 2114. At page 2117 of the report, it was observed as under:--

            "We do not find merit in the contention as remedy by way of revision cannot be claimed as a matter of right hence same cannot be treated as alternate adequate remedy consequently mere fact a revision was competent would not prevent this Court from exercising the Constitutional jurisdiction if the impugned orders are without jurisdiction or are in violation of some law. Reference may be made to (i) Mst.Zahida Begum v. Wing Commander Ziauddin Ahmad and 5 others (1983 CLC 187 D.B Karachi) wherein the Division Bench of this Court held that remedy by way of revision, neither can be claimed as a matter of right or treated as an alternate adequate remedy and there would be no bar to the constitutional petition mere fact that revision was competent and (ii) Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395. It may also be pointed out that revision would lie only on the point of law but in the instant petition disputed question of facts are involved requiring an elaborate enquiry and recording of evidence, therefore, filing of revision could not be termed to be alternate adequate remedy in the circumstances of the case."

            The supervisory jurisdiction has been conferred on the High Court for correction of the errors and procedural illegalities committed by the Special Tribunal or Courts in exercise of their jurisdiction. No embargo can be placed on the constitutional powers on this Court mere on the ground that same like powers have been exercised by the Subordinate Court. Under Order VII, Rule 11 of the Civil Procedure Code, a suit or application can be dismissed, when it is barred by law. As section 12(2) bars the independent suit for challenging a decree or judgment on the basis of fraud and provides a speedy remedy for cancellation of such a decree, therefore, in earlier round of litigation, the learned Civil Judge as well as the District Judge has rightly rejected the plaint. The negligence of a litigant can be condoned when his conduct is aboveboard and has not wasted any time when it was brought into his knowledge that he has chosen a wrong forum. In the present case, even otherwise, after rejection of the plaint, respondents, herein, went in appeal before the District Judge and remained prosecuting the same, therefore, it cannot be said by any stretch of imagination that the prosecution of the case before the Civil Judge and subsequently before the District Judge by them was in good faith and with due care and caution. The time so consumed can be extended under Section 14 of the Limitation Act if forum was chosen with care and caution but in case of gross negligence no such condonation can be ordered. The judgment of the learned Additional District Judge is, therefore, illegal, arbitrary and against the above settled proposition of law. The contention of Mr.Bashir Ahmed Mughal, the learned Advocate for the petitioners that the principle of res judicata and Order II, Rule 2 was attracted is devoid of any force. The suit was rejected under Order VII, Rule 11 of the Civil Procedure Code and the judgment was not on merits, therefore, neither the provisions contained in section 11 nor Order II, Rule 2 of the Civil Procedure Code are attracted in the present case.

            The upshot of the above discussion is that the writ petition is accepted and judgment and order passed by the Additional District Judge, Muzaffarabad on 13-2-2013 in Revision Petition No.1 of 2013 is hereby declared to have been passed without lawful authority and of no legal effect. Resultantly, the order passed on the application under section 12(2) of the Civil Procedure Code filed on behalf of respondents by the Civil Judge stands restored.

AG/70/HC(AJ&K                                                                                Petition allowed.