1. ' GHULAM MUSTAFA MUGHAL, J.--- Briefly stated the facts forming the background of instant appeal are that the respondents, herein, filed a suit for recovery of Rs,6,01,400 against Neelum Valley Development Board, in the Court of Additional District Judge, Muzaffarabad, on 28-8-2004. Record reveals that the defendants/ appellants, herein, did not appear despite service, therefore, were proceeded ex parte. The learned Additional District Judge, recorded ex parte evidence and decreed the suit vide judgment dated 25-11-2004 to the tune of Rs,6,01,400 in favour of the plaintiffs.
2. It was further ordered that Rs,1,32,000 would be paid to plaintiff No,2. The appellants, herein, challenged the aforesaid ex parte judgment and decree through a regular suit on the ground of fraud and deception in the Court of District Judge, Muzaffarabad, on 6-3-2008, which was later on transferred to District Judge, Neelum.
3. ' The defendants filed written statement and prayed for rejection of the plaint on the ground that a regular suit for setting aside an ex parte judgment and decree is not competent under section 12(2) of the Code of Civil Procedure, hence, the plaint is liable to be rejected under rule 11 Order VII, C.P.C. The suit was also resisted on the ground of limitation. The defendants, also refuted the rest of the claim of the plaintiffs.
4. ' The learned trial Court framed issues in light of the respective pleadings of the parties and adjourned the case for arguments on issue No,1, on which suit could be disposed of in toto but before that appellants/plaintiffs, filed another application for treating the suit as an application under section 12(2), C.P.C. In alternative they requested that the suit may be treated as application under section 151, C.P.C. This application was resisted by the respondents, herein, on the ground that the same is not maintainable and has been filed in order to prolong the execution of the ex parte judgment. The learned District Judge, heard the parties on this application and declined the conversion of the proceedings as were requested and rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure, hence, this first appeal.
5. ' Arguing on behalf of the appellants, herein, Mr. Abdul Aziz Mughal, the learned Advocate,.
6. Contended that the record appended with the plaint clearly discloses that the plaintiffs, respondents, herein, have obtained ex parte judgment and decree dated 25-11-2004, by playing fraud and deception because they have received the claimed amount from the Neelum Valley Development Board and despite that they filed the recovery suit by suppressing the true facts from the Court. He argued that it was enjoined upon the Court to accept the application and treat the suit as an application under section 12(2), C.P.C., and decide the controversy on merits. The learned Advocate further argued that reasons listed by the learned trial Court are contrary to the settled law, hence, the impugned judgment may be reversed. In support of his submissions the learned Advocate placed reliance on the following cases:---
(i) Noorulamin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744, (ii) Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others PLD 1983 Pesh. 87, (iii) Mst. Gull Fatima v. Husna and others 2002 YLR 1651.
7. ' In Noor-ul-Amin's case, the apex Court of Pakistan observed that the mere fact that plaint in the suit was described as a plaint and was registered as such, could not deprive the Court of its jurisdiction to decide it as an application under section 12(2), C.P.C.
8. ' In other two cases referred above, the same view was reiterated and followed.
9. ' Mir Sharafat Hussain, the learned counsel for the respondents, controverted the arguments advanced on behalf of the appellants. He submitted that after adaptation of the amendment made in section 12(2) of the Code of Civil Procedure in Azad Jammu and Kashmir, a regular suit for setting aside an ex parte judgment and decree on the ground of fraud and deception cannot be filed, hence, order passed by the learned trial Court is unexceptional and is liable to be maintained.
10. He argued that it was enjoined upon the plaintiffs/ appellants, herein, to file proper proceedings because ignorance of law is no excuse and they must suffer for their own lapses. The learned Advocate further contended that the order passed by the learned District Judge is well reasoned and is also supported by the precedents of the superior Courts. He maintained that the trial Court has exercised its discretion judiciously and until it is shown that the order under challenge is arbitrary, capricious and against the law the same cannot be disturbed in appeal.
11. ' I have heard the learned Advocates for the parties and gone through the record of the case.
12. ' Firstly, I would like to discuss the authorities referred to and relied upon by the learned trial Court in support of the judgment. The learned trial Court has placed reliance on Ghulam Sarwar's case 1987 SCMR 1440. Facts of that case were totally different from the instant case and are distinguishable.
13. In that case a suit for specific performance of, an agreement-to-sell of the agricultural land was decreed ex parte. The defendants, therein, moved an application for setting-aside ex parte decree on the ground that they have not been served and the decree has been obtained by the respondents fraudulently. From perusal of the judgment it appears that the application was moved under Order IX, rule 13 of the Code of Civil Procedure. The learned trial Court came to the conclusion that the defendants, therein, were properly served and dismissed the application. The revision before the District Judge also met the same fate. Thereafter another application for recalling the decree under section 12(2), C.P.C. Was moved on the same grounds which was dismissed by the trial Court. This order was further upheld by the District Judge and the High Court. Petition for leave to appeal was also declined by the apex Court of Pakistan.
14. ' The second case on which the learned trial Court has placed reliance is Mst. Arfa Arif v. Kulsoom Naqvi PLD 2000 Kar.
31. In that case an application under section 151, C.P.C. Was rejected in view of the distinguishable circumstances and I have no quarrel with the law laid down therein.
15. ' The other two cases referred to and relied upon by the learned District Judge, Neelum are also not helpful because their facts are distinguishable.
16. ' It may be stated that in the case in hand, the precise question which falls for determination is as to whether the suit filed by the plaintiffs, could be treated as an application under section 12(2) of C.P.C. In my estimation, the circumstances and facts pleaded by the plaintiffs, and the perusal of ex parte judgment justify the conversion of the proceedings. By now law is well settled that all the rules of procedure are meant for dispensation of justice and to preserve the valuable rights of the parties to a suit. The Courts are duty bound to apply them for the same purpose, otherwise the litigant public has to suffer a lot and very purpose of law would also be frustrated.
17. ' In Noor-ul-Amin's case referred to hereinabove the apex Court of Pakistan at page 1746 of the report observed as under:-- ".. Mere fact that it was described as a plaint and was registered as plaint could not deprive the Court of its jurisdiction to decide it as an application under section 12(2), C.P.C. If otherwise such jurisdiction was available to the Court under the law. It is not disputed before us that an application under section 12(2), C.P.C. Could be filed for setting-aside the decree in Suit No,119/1 of 1983 on the grounds mentioned in the plaint in Suit No,231/1 of 1986. In these circumstances the learned District Judge Peshawar, was absolutely right in treating the plaint in Suit No,231/1 of 1986 as an application under section 12(2) of C.P.C. And remanding it to the Civil Judge who passed the decree in Suit No,119/1 of 1983 for disposal accordingly to law. The learned counsel, for respondents Nos.1 to 5 is unable to point out any prejudice which could be caused to respondents by treating the plaint in Suit No,231/1 of 1986 as an application under section 12(2) of C.P.C. The Courts in order to do justice between the parties, would generally allow treatment/ conversion of proceedings of one kind into another, unless there exists some legal bar against such treatment/conversion....................................... "
18. ' The same view was reiterated in Mst. Ghulam Fatima's case, referred to hereinabove. It was observed as under:---
7. The point for examination is that as to whether the plaint in the suit for declaration filed by Mst.
19. Ghulam Fatima could be converted into an application under section 12(2) of the C.P.C. Which basically requires that on the allegation of misrepresentation, fraud such like application is to be moved before the same Court which passed the judgment and decree or the matter. It looks that there is no serious dispute in the instant case in the light of the judgments of the Superior Courts as mentioned above because it was held in Noor-ul-Ameen and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 that if a plaint in a suit is registered as a plaint mere this fact cannot debar the Court of its jurisdiction to decide the same as an application under section 12(2), C.P.C.
20. But the Court must have jurisdiction in this regard under the law and it was also held that the Courts should always lean in favour of adjudication on merits rather than stifling the proceedings on technicalities .."
21. 'Considering the facts of the present case in light of the aforementioned case-law, I am of the considered opinion that the learned trial Court should have accepted the application filed on behalf of the appellants, herein, in the interest of justice. The Courts have also inherent jurisdiction to convert one kind of proceedings into another and a party alleged to have obtained the decree or judgment from the Court, playing fraud and deception, should not be allowed to reap the fruits of its fraud because fraud vitiated the most solemn proceedings.
22. ' The upshot of the above discussion is that the appeal is accepted and the application filed on behalf of the appellants, herein, for treating the suit as an application under section 12(2) of the Code of Civil Procedure is hereby granted. The learned District Judge, Neelum, is directed to proceed in the matter in accordance with law.