2017 C L C 699
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
MUHAMMAD UMAR and others ----Petitioners
Versus
HAMID HAMZA and 4 others ----Respondents
C.P. No.(T)468 of 2013, decided on 29th December, 2016.
Civil Procedure Code (V of 1908) ---
----S. 12(2) ---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent
injunction wherein applicant was not made party ---Acceptance of petition under S.12(2), C.P.C.
on the ground of fraud and misrepresentation---Rev ival of main suit---Scope ---Trial Court
accepted application under S.12(2), C.P.C. without framing issues and recalled the decree ---
Plaintiffs contended that application under S.12(2), C.P.C. had raised factual controversy, which
required consideration aft er adducing evidence ---Applicant who had filed the application under
S.12(2), C.P.C. claimed that in earlier suits applicant was made party but the said suits were
withdrawn with permission to file fresh suit---Applicant, with application under S.12(2), C.P.C.
had annexed documents/previous suit filed by the predecessor of plaintiffs in respect of disputed
property which was judicial record of the court ---Consideration of Trial Court in respect of
concealment of facts and fraud on the part of predecessor of plaintiffs were based on the
documents to which presumption of truth was attached---Applicant being necessary party in the
suit, was not impleaded---When there were controversy of facts or that of law between the
parties in main suit, the suit could not b e dismissed while accepting application under S.12(2),
C.P.C., but the court, after revival of suit, should proceed with the matter by impleading the
applicant under S.12(2), C.P.C. as a party and after providing opportunity to parties decide the
case on m erits---Trial court neither revived the suit nor made any direction to implead applicant
under S.12(2), C.P.C. as party nor proceeded the suit on merits, therefore, to such extent,
findings of Trial court were contrary to law, thus void---Order setting asi de judgment and decree
was sustained, however, main suit was revived and remanded to Trial Court ---Order accordingly.
Haji Farman Ullah v. Latif -ur-Rehman 2015 SCMR 1708 ref.
Khalid Ahmed Kubdani for Petitioners.
Abid Sherazi for Respondent No.4.
Date of hearing: 8th December, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The predecessor of the petitioners namely Syed
Muhammad son of late Nabi Bakhsh filed a suit for Declaration, Possession, Cancellation,
Correction, Damages and Permanent Injunction against the respondents Nos.1 and 2, which was
decreed by the Senior Civil Judge, Gwadar (hereinafter the "trial Court") vide judgment and
decree dated 21st February, 2009. The respondent No.4 challenged the afore -referred judgment
and decree by way of filing application under section 12(2), C.P.C. on the ground of fraud and
misrepresentation. The trial Court vide order dated 19th July 2012 (hereinafter the "impugned
order") accepted the application and set aside the judgment and decree dated 21st February, 2009
and also restored the mutation entry Nos. 16, 17, 35 and 36 of Khewat and Khatooni No.40/40,
Khasra No.115/2, 116, which was cancelled through execution in proceedings of decree dated
21st February 2009. The petitioners initially challenged the impugned order by way of filing
Civil Revision Petition No 01 of 2012 before the District and Sessions Judge. Gwadar which was
not entertained due to lack of pecuniary jurisdiction and the revision petition was returned to the
petitioners with direction to present the same before the proper forum vide order dated 29th
March, 2013.
2. The instant petition was filed on 21st June, 2013 assailing the impugned order dated 19th
July, 2012.
3. The learned counsel for the petitioners contended that the respondent No.4 in the
application under section 12(2), C.P.C. had raised factual controversy, which was required
consideration after framing issues and adducing evidence, but the trial Court without framing
issues dilated upon the same and re -called the judgment passed in favour of the petitioners; that
no element of misrepresentation was pleaded in the application under section 12(2), C.P.C. nor
during the course of arguments, any substance was before the trial Judge, therefore, findings of
the trial Court in respect of allege d fraud and misrepresentation are based on presumptions; that
the trial Court, though mentioned that the case of the respondent No.4 was scanned, but no
reference of evidence in this respect had been given, therefore, the findings of the trial Court in
this respect are also based on surmises and conjectures; that after acceptance of application under
section 12(2), C.P.C. and setting aside of the judgment dated 21st February, 2009, the matter
revives and legally the trial Court was required to have proceede d with the matter on merits and
decided the same, but no further proceeding has been directed by the trial Court, which resulted
grave miscarriage to the petitioners.
The learned counsel for the respondent No.4, on the other hand contended that the
predec essor of the petitioners Syed Muhammad had obtained a decree dated 21st February, 2009
by committing fraud through misrepresentation. He further submitted that the petitioners prior to
filing of instant suit had also filed two other suits, wherein he admitted the sale of the property to
other persons, however, those suits were withdrawn with permission to file fresh, but when fresh
suit was filed, the necessary parties, to whom properties were sold had not been made party and
thus, in a concealed manner obt ained the decree; that the trial Court after considering the
admitted documentary evidence including orders of the Court passed the impugned order, which
is based on proper appreciation of law. He further pointed out that the instant petition is also
barre d by time therefore, is liable to be dismissed.
4. We have heard the learned counsel for the parties and perused the record of the case. The
respondent No.4 had challenged the judgment and decree dated 21st February 2009 passed by
the trial Court. The resp ondent No.4 while filing application had annexed documents/ previous
suits filed by the predecessor of the petitioners indicating the facts that Syed Muhammad had
filed previous suits in respect of same Khasra numbers, wherein the facts related to sale of the
properties were also mentioned. Since these documents were judicial record of the Court and
there was no controversy between the parties in this respect, therefore, consideration of the trial
Court in respect of concealment of facts and fraud on the pa rt of the predecessor of the
petitioners are based on the documents, to which presumption of truth was attached, even
otherwise, there was no need of framing issues in this respect. It appears that the trial Court after
considering the legal and factual as pects of the matter had passed the impugned order and found
that the respondent No.4, being necessary party in the suit, was not impleaded, and thus, a
valuable right of the respondents was infringed, therefore, acceptance of the application under
section 12(2), C.P.C. and setting aside of the judgment and decree dated 21st February, 2009,
culminates revival of the suit to entitle the parties to contest the same on merits and gets a
decision in accordance with law. The learned counsel for the respondent No.4 submitted that
since there was sufficient material on record, therefore, the trial Court while deciding the
application under section 12(2), C.P.C. has rightly not revived the suit. This contention of the
learned counsel for the respondent No.4 is not te nable, because if the Court finds that a judgment
and decree has been obtained or alleged to have been obtained on the basis of fraud and
misrepresentation, on acceptance of the same, the suit of the plaintiff shall automatically stand
revived and the appl icant (under section 12(2), C.P.C.) will file his written statement and then
joint issue on the merit of the case, however, the trial Court is also competent to pass an order in
view of Order VII, Rule 10, C.P.C. in case the Court lacks jurisdiction of the original suit,
however, when there is controversy of facts or of law between the parties in the main suit while
accepting the application under section 12(2), C.P.C., the suit cannot be dismissed, but the Court
after revival of the suit shall proceed the matter by impleading the applicant (under section 12(2),
C.P.C.) as a party and then after providing opportunity to the parties decide the case on merits.
Reference in this respect is to be made to the case of Haji Farman Ullah v. Latif -ur-Rehman,
2015 SCM R 1708, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"If after the contest of the application under section 12(2), C.P.C., the court comes to the
conclusion that the decree did suffer from vice as is stipulated by the section, it shall
accept the same and as a general and ordinary rule and matter of course, the suit of the
plaintiff shall stand revived and thereby give a chance to the defendant (the applicant
under section 12(2) to file his written statement, for the purposes of setting up his defence
in the main suit. Thereafter, the case shall be tried and decided on its own merits per the
law prescribed for a suit (after the revival thereof). It is in very exceptional, special and
extra ordinary circumstances where e.g. the plaint does not disclose a cause of action or is
barred under the law, that while accepting the application (under the provisions of section
12(2), C.P.C), the court may also reject the plaint or even dismiss the suit for want of
jurisdiction, where the jurisdiction of the court is clearly and undoubtedly barred under
the law and there is no valid reason to revive and try the suit which the court otherwise
has no jurisdiction to entertain and adjudicate upon. In this context, it may be pertinent to
mention that in appropriate cases of want of jurisdiction, the court while accepting the
application under section 12(2), C.P.C. may order for the return of the plaint under Order
VII, Rule 10, C.P.C. so that the matter is tried by a court of competent jurisdiction. But
wher e there is a controversy of facts or of law between the parties in the main lis, while
accepting the application (under section 12(2), C.P.C.), the suit cannot and should not be
dismissed."
5. In the instant case, the trial Court while accepting the applic ation under section 12(2),
C.P.C. though set aside the judgment and decree dated 21st February, 2009, but has neither
revived the suit nor made any direction to implead the respondent No.4 as party nor proceeded
the suit on merits, therefore, to such extent, the findings of the trial Court are contrary to law and
void. In the circumstances, the contention of the learned counsel for the respondent No.4 that
petition is barred by time in view of second limb of impugned order, which appears to be
contrary to t he merits of the case cannot be sustained, therefore, this petition is partly allowed,
the impugned order dated 19th July, 2012 to the extent of setting aside of judgment and decree
dated 21st February, 2009 is sustained, however, after acceptance of the a pplication under
section 12(2), C.P.C. the suit has been revived and the case is remanded the trial Court with
direction that after impleading the respondent No.4 as defendant, the matter be proceeded with
on merits in accordance with law.
MQ/18/Bal Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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