MUHAMMAD MUZAMMAL KHAN, J.---This Constitutional petition seeks judgments/orders dated 1.3.2003 and 10.6.2003 passed by the learned Civil Judge and the learned Additional District Judge, Faisalabad, respectively, to be declared illegal, void and of no legal consequence.
2. A short factual background of the case is that property No. 78, Rail Bazar Faisalabad, except box in the shape of Almarah fixed with western walls, towards street and `Thara' was allotted to respondent No. 2 whereas Almarah and Thara was allotted to the petitioners by the Settlement Department, treating it to be a separate property. This allotment was assailed in appeal and revision and ultimately the Honourable Supreme Court of Pakistan vide judgment dated 15.1.1963 kept allotment of the petitioners inact. Respondents Nos. 3 to 6 on 13.3.1996 are alleged to have filed a collusive suit against respondent No. 2 asserting that they are in possession of property No. 78 above- referred, on the basis of some sale by respondent No. 2. According to the petitioners their Almarah and "Thara" were also included in the plaint but they were not impleaded as parties thereto. Respondents under a pre-planned conspiracy among them on 25.3.1996 conceded the suit on the basis of which the learned Civil Judge who are seized of it, on 2.4.1996 decreed the suit of respondents Nos. 3 to 6. The petitioners on 4.11.1998 gaining knowledge of the decree dated 2.4.1996 during the precedents in another suit titled "Crescent Textile Mills Limited etc. Versus Muhammad Ramzan filed an application under section 12(2), CPC pleading that the above-referred decree is fraudulent and has been obtained through misrepresentation and thus is being illegal and unauthorized is not binding on them, before the learned Civil Judge, who passed it. This application was filed on 22.10.2001.
3. The respondents after receipt of notice from the Trial Court, filed an application under Order VII, Rule 11 read with Section 151, CPC seeking summary rejection of petition under section 12(2), CPC inter alia on the ground that it is barred by limitation. The petitioners, contested this application by the respondents through their written reply wherein they claimed that their application is within limitation. The Trial Court, after hearing the parties vide judgment order dated 1.3.2003 accepted the application under Order VII, Rule 11 of the CPC and summarily dismissed the application under section 12(2), CPC filed by the petitioners. The petitioners aggrieved of the decision of the Trial Court dated 1.3.2003 filed a revision petition before the learned Additional District Judge, but remained unsuccessful, as it was dismissed on 10.6.2003. They then filed the instant Constitutional petition for the relief noted above.
4. The learned counsel for the petitioners submits that there is no period of limitation provided for filing an application under section 12(2), CPC by the Limitation Act, 1908, hence the residuary Article 181 of it will be applicable which provides limitation for such applications as 3 years. Since the petitioners were not parties to the suit in which decree was passed and it being fraudulent, misrepresented and without jurisdiction the period of limitation would start from the date of knowledge and not from the date of decree. According to him both the Courts below have calculated limitation from the date of decree, which is contrary to law. He elaborated his arguments by saying that the petitioners had specifically mentioned in para No. 9 of their petition under section 12(2), CPC that decree came to their knowledge on 4.11.1998 which fact was not denied by the respondents by filing any reply thereto and as such period of limitation would start from 4.11.1998 and their petition being filed on 22.10.2001, is within limitation. He further asserts that question of limitation was a mixed question of law and facts and it could not have been reserved without recording of evidence. He also submits that summary dismissal of his petition was not at all warranted. He referred to judgments in cases of Fida Hussain Versus Ghulam Sarwar (2002 SCMR 1554) and Malik Yar Muhammad and 3 others Versus Muhammad Farooq Ahmad Khan and 3 others (2000 MLD 322).
5. Both the learned counsel appearing on behalf of the respondents opposed assertions of the petitioners supported the orders by respondent No. 1 and the Trial Court and urged that limitation for filing application under section 12(2), CPC would start from the date of decree and not from the date of knowledge. In support of their assertions they referred to the judgments in the case of Abdul Aziz and 6 others Versus Member Board of Revenue and 15 others (1998 SCMR 1078), they also submitted that period of limitation once having started to run, cannot be stopped even by the consent of parties. In this behalf they referred to judgment in the case of Inter Home (Pvt) Versus Pakistan Steel. Mills Corporation (PLD 1992 Karachi 99). They also contended that the petitioners did not move an application under section 5 of the Limitation Act for condonation of delay, as under law they had to explain each day's delay and the petitioners were to furnish sufficient cause for this purpose.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Undeniably the allotment of the petitioners regarding. "Almarah" fixed with western wall of shop No. 78 towards street was maintained upto the level of Honourable Supreme Court, as for back as on 15.1.1963. The suit filed by respondents Nos. 3 to 6 which was decreed on confessional statement of respondent No. 2 on 2.4.1996, without impleading -the petitioners as parties did give a justifiably cause to them for filing the application under discussion wherein they had specifically-narrated their date of knowledge of the decree attacked as 4.11.1998 during the course of proceeding in another suit pending between them and respondent No. 2. None of the respondents filed any reply to their application denying date of knowledge, given by the petitioners. Respondents simply. Filed an application under Order VII, Rule 11, CPC wherein they only asserted that the application by the petitioners have been filed after lapse of 5 and a half years and being barred by limitation deserves summary rejection. Now if the period of limitation is calculated from 4.11.1998 the application under section 12(2), CPC is within three years' the period prescribed by residuary Article 181 of the Limitation Act, 1908. There is no other provision of Limitation Act controlling time for filing of such an application hence the above-mentioned Article will be applicable. Only controversy, which requires determination, is whether the limitation would start running against the petitioners, who were admittedly not party to the suit, from the date of decree or from the date of their knowledge. In the case of Fida Hussain (supra) the Honourable Supreme Court has mandated, in the similar circumstances that for challenge to a decree obtained through fraud can be made when the asserted fraud comes to the knowledge of the person assailing the decree whereto he is not party of the suit. In this precedent case as well, consent decree was passed on 4.11.1980 and applicant came to know about the decree on 21.9.1982 and he filed an application under section 12(2), CPC on 3.10.1986. The Trial Court dismissed this application but Appellate Court reversed judgment. The High Court in the Constitutional jurisdiction received decision of the Trial Court. The Honourbale Supreme. Court graciously applied Article 181 of the Limitation Act, 1908 and found that the application under section 12(2) from the date of knowledge was barred by limitation and interference was declined in another case Government of Sindh and another Versus Ch. Fazal Muhammad and another (PLD 1991 SC. 197) and Allah Bakhsh and anotherVersus Irshad Begum and others (1986 SCMR 1496), the Honourable Supreme Court took a similar view and held that the decree obtained through fraud and misrepresentation can be challenged within a period of three years which shall start running from the date of knowledge of the parties effected. This Court in the case of Malik Yar Muhammad and 3 others (supra) also held that limitation for such application will be from the date of knowledge of the impugned decree.
7. The judgments in the case of Abdul Aziz and 6 others (supra) referred by the respondents was given in the case wherein the applicant in the application under Section 12(2), CPC was party to the proceedings and thus limitation was counted as three years from the date of judgment, hence' this judgments is not applicable, it proceeds on different facts. Likewise the other judgments referred by the respondents are of no help to their case especially in view of the authoritative dictum of the Honourable Supreme Court in Fide Hussain's case and Allah Bakhsh and other's case. I respectfully following consistent view of the Honourable Supreme Court hold that period of limitation for filing application under section 12(2) by a person, who is not party to the suit, would run from the date of knowledge and not from the date of decree.
8. It is also a settled controversy that limitation is a mixed question of law a fact, which in certain case, like the one in hand cannot be decided resolved without recording of evidence . A Reference can be made to the case of 1999 SCMR 2396. The Trial Court erroneously accepted the application of respondents under Order VII, Rule 11, CPC and incorrectly rejected the petition under section 12(2), CPC filed by the petitioners without framing of any issue, with regard to limitation and without providing the parties any opportunity of proving their respective stances. Both the orders dated 1.3.2003 and 10.6.2003 passed by the Trial Court and the revisional Court are thus bad at law and are declared to be illegal, void and of no legal consequence. This Constitutional petition is accordingly accepted and writ, as prayed is issued, in result of which the application under Order 12(2), CPC filed by the petitioners, shall be deemed to be pending before the Trial Court and shall be decided afresh after framing of issues and recording of evidence as noted above. The Trial Court may first decide question of limitation after framing of issues treating issue of limitation as preliminary under Order XIV, Rule 2, CPC. There will be no order as to costs. Parties are directed to appear before the Trial Court on 19.2.2004.