1. JUDGMENT FAISAL ARAB , J.--- Brief facts-of the case are that in 1987 Respondent No.1 filed suit No. 37 of 1987 in the Court of 2nd Senior Civil Judge, Larkana for declaration and injunction with regard to his claim to 211 acres of land situated in Deh Sajawal, Taluka Mirokhan, and District Larkana.
2. In the suit Respondent No. 1 pleaded that on the basis of two un-registered sale deeds, first dated 10.2.1946 and the second dated 01.02:1947, he purchased 211 acres of agricultural lands from Hindus for a total sale consideration of Rs. 19,298/-. He further stated in the plaint that after the migration of the Hindu vendors to India, he got the sale transaction confirmed from the Deputy Custodian of the Evacuee at Sukkur vide his orders dated 05.04.1965 and 19.04.1965. It is further stated in the plaint the disputed lands remained under his cultivation though no mutation in his name in the revenue record was effected and it was only in February 1987 when the Respondent No.1 approached Tapedar of the area to get the land mutated in his name that the Tapedar, after examining the Revenue Record, informed him that the disputed lands stand -in the name of the Government (Pakistan) and that he should approach Civil Court for redressal of his grievance. The Respondent No. 1 further stated in the plaint that he then approached Mukhtiarkar and showed him the sale deeds allegedly executed in 1946 and 1947 as well as the sale confirmation orders which he claim to have obtained in 1965 from Deputy Custodian Evacuee property Larkana at Sukkar, the plaint goes on to narrate that Mukhtiarkar refused to mutate the disputed lands in his name and therefore Respondent No.1 was left with no other option but to file suit, which he did by filing Suit No. 37 of 1987.
3. In his suit, Respondent No.1 made Mukhtiarkar as well as Federal Government and Provincial Government a party. The Federal Government was sued in the name of "Central Government through Secretary Revenue Department at Islamabad" and Province of Sindh was sued in the name of "Province of Sindh through Deputy Commissioner Larkana". Though the service of summons on the Federal Government was not effected, Respondent No.1, withdrew the suit against the Federal Government by describing it as only a proforma party. After dropping Federal Government from the suit, Respondent No.1 obtained ex- parte decree in his favour vide judgment and decree dated 28.06.1988. On the strength of ex-parte decree Respondent No.1 sought mutation of the disputed land in his name. At this stage the petitioners appeared at the scene who claimed that they are the real-owners of 112 acres out of 211 acres of the disputed lands by filing application under section 12(2) C.P.C, on 13.3.1989 and sought setting aside of the ex-parte decree passed in the suit in favour of Respondent No.1 on the ground that they purchased 112 acres of the disputed land for a sum of Rs. 60,000/- from the person to whom the land was transferred under Evacuee Laws, In their application the petitioners claimed that Respondent No.1 obtained the judgment and decree at their back without impleading them as party to the suit. The Senior Civil Judge allowed the petitioners' application filed u/s 12(2) C.P.C, vide his order dated 5.9.1995 and set aside the -ex- parte judgment and decree dated 28.6.1988. Respondent No.1 then preferred Civil Revision No.07 of 1995 before the District Judge who set aside the order passed on section 12(2)'C.P.C. Application and restored the ex-parte judgment and decree originally passed on 28.6.1988. Aggrieved by the order of the District Judge the petitioners have filed the present petition.
4. It is contended by the petitioners advocate that there was no legal justification for the District Judge to set aside the order passed by the Senior Civil Judge on section 12(2) C.P.C, application as they have shown their entitlement to 112 acres of land on the basis of documentary evidence and the judgment and decree having been passed at their back, the same was rightly set aside, It was further contended by the Petitioner's counsel that the act of misrepresentation on the part of Respondent No.1 in obtaining ex-parte decree is evident from the fact that in paragraph 4 of the plaint, Respondent No.1 has himself stated that in the revenue records the disputed land is shown to be owned by Federal Government whereas he withdrew the suit against Federal Government on the pretext of it being only a proforma party and it was done to obtain ex-parte decree without any contest. He further contented that the effect of withdrawing th$ suit against Federal Government meant that Respondent No.1 gave up its claim in favour of Federal Government.
5. The petitioner's counsel next argued that even the Federal Government and the Province of Sindh were not property sued. By suing Federal Government in the name of "Central Government through Secretary Revenue Department at Islamabad" is by itself an incurable legal defect, as respondent No.1 ought to have sued "Federal Government through its Secretary."
6. Learned counsel for the petitioners has also contended that under order 27 rule 4 C.P.C, the notices on province of Sindh could have been served through Government Pleader but no such attempt was made.
7. It was then contended by the petitioners' counsel that the entire claim of Respondent No.1 in the suit was based bn the so-called sale agreements executed by Hindu owners on 10.2.1946 and 01.02.1947 but neither these documents were annexed with the plaint nor have been shown at the foot of the plaint to be such documents upon which reliance has been placed. He submitted that failure to produce these documents means that there exist no such sale agreements.
8. Lastly, the petitioner' counsel contended that fraudulent nature of Respondent No.1's claim is evident from the fact that Respondent No.1 has claimed that he got the sale transaction, said to have taken place prior to March 1947 confirmed from Deputy Custodian of Evacuee Property Larkana at Sukkar whereas section 20(i). Of Pakistan evacuee Property Act 1957 provides that only such sale transactions were required to be confirmed which took place after 01.03.1947. He relied upon section 16(3) of Pakistan Evacuee Property Act 1957. He submitted that even the authenticity of the so-called confirmation from Evacuee authorities is doubtful as vide letters dated 10.02.1990 and 28.03.1990, the department has denied that any confirmation of sale was obtained for it.
9. In respondent to the above contentions Mr. Abdul Hameed Khan advocate the learned counsel for Respondent No.1 has contended that none of the pleas taken before this Court have been taken by the petitioners in their 12(2) C.P.C, application. Counsel for Respondent No.1 has placed reliance on an extract from Revenue Record of Deh Form-ll in order to show that entries in favour of the petitioners were cancelled on 05.06.1996 by the then Deputy Commissioner Larkana and such order was never challenged before any legal forum and therefore the petitioners have no locus standi to contest the claim of Respondent No.1.
10. Counsel for the petitioner respondent that legal pleas which he has taken now can be taken at any stage. He further contended that entries were cancelled by the Deputy Commissioner at a time when the Civil Court was seized of the matter and petitioners' application filed under section 12(2)
11. C.P.C. Was pending before the Senior Civil Judge and secondly that entries were cancelled without any notice to the petitioners.
12. Learned Additional Advocate General has contended that ex-parte judgment and decree was rightly set aside as it. Was obtained without any service upon the Federal Government or Province of Sindh, and submitted that the matter be ordered to be decided by the Civil Court afresh on merits as valuable rights of the parties i.e. The petitioners, Respondent No.1 and the Federal Government of Pakistan are involved.
13. As it is an admitted position that 112 acres of disputed land stood in the name of the petitioners at the time of passing of ex-parte decree and that Respondent No.1 has himself pleaded in paragraph 4 of the plaint that Federal Government is shown to be owner of land, iq becomes imperative that no executable decision can be obtained from Civil Court unless both these parties are given opportunities to contest Respondent No.1s claim.
14. We, therefore, set aside the impugned judgment and restore the order of Civil Judge passed on petitioner's application filed under Section 12(2) CPC with further directions that Respondent No.1 shall file amended plaint impleading the petitioners as well as Federation of Pakistan and the Province of Sindh through their appropriate secretaries. Therefore the Civil Court shall issue summons to the defendants. This petition is disposed of in the above terms.