' FAISAL ARAB, J. Through this Judicial Miscellaneous. Application bearing No, 1 of 2010, the applicant seeks setting aside of judgment and decree passed in Suit No,103/2009 on 9-3-2009. The controversy relates to a property which was originally owned by Mst. Afsar Iqbal, who was mother of both the applicant and respondent No,2. On 20-9-2006 Mst. Afsar Iqbal gifted the suit property to respondent No,2. Then on 20-2-2008 under a registered sale-deed Mst. Afsar Iqbal acting as attorney of respondent No,2 executed a sale-deed in favour of the applicant and title in the property stood transferred in the name of the applicant. In disregard of the same deed executed in favour of the applicant on 20-2-2008, respondent No,2 entered into an agreement to sell with respondent No,1 on 1-9-2008 on the basis of gift deed dated 20-9-2006, that was executed earlier by Mst. Afsar Iqbal in her favour. Respondent No,1 then filed suit for specific performance of contract bearing No,103 of 2009 on the basis of the agreement to sell that was executed by respondent No,2 on 1-9-2008. During pendency of the suit, respondents Nos 1 and 2 entered into a compromise on 9-3-2009 and obtained consent decree. Pursuant to such consent decree, respondent No,1 obtained possession of the suit property through Nazir of this Court. The applicant, who during all this time is said to be abroad, when came to know that respondent No,2 has sold the disputed property to respondent No,1 and possession has also been delivered to respondent No,1 on the basis of consent decree, filed present application under section 12(2) of the Civil Procedure Code.
2. Learned counsel for respondent No,1 at the very outset questioned the maintainability of this application on the ground that the applicant had herself filed similar application under section 12(2), C.P.C. Bearing J.M.No,49/2009 prior to the present one which was withdrawn on 1-1-2010 and therefore second application under section 12(2) of the Civil Procedure Code on the same grounds is not maintainable in law and liable to be dismissed. Maintainability of the present application has also been questioned on the ground that the decree dated 9-3-2009, which is challenged in the present proceedings stood modified by an order dated 28-8-2009 passed in J.M. No, Nil of 2009 and this modified decree has not been challenged in the present application. Yet another objection as to the maintainability of the present application has been taken. It was argued that prayers made in the present application are beyond the scope of section 12(2) of the Civil Procedure Code as a registered sale-deed executed in favour of respondent No,1 pursuant to the consent decree cannot be annulled in proceedings initiated under section 12 (2) of the Civil Procedure Code. As to the merits of the case, learned counsel for respondent No,2 argued that respondent No,2 claims title in the disputed property under a Gift Deed that was executed by her mother Mst. Afsar Iqbal on 20th September, 2006 in her favour and the sale-deed was executed in favour of the applicant is dated 20-2-2008 which too was not executed by respondent No,2 but by mother acting as attorney of respondent No,2 and as respondent No,2 did not execute the sale- deed herself in favour of the applicant, the title in the suit property was never lawfully transferred in favour of the applicant, which continued to nest in respondent No,2 under the gift deed dated 20- 2-2006.
3. In support of the contention that withdrawal of the proceeding put the lis to an end and therefore second application under section 12(2) of the Civil Procedure Code on same grounds was not maintainable, learned counsel for respondent No,2 relied upon cases reported in 1990 MLD 1702 and PLD 2001 SC 320. He also relied upon the cases reported in 2006 CLD 1424, 2003 CLD 320 and 2004 MLD 1008, in support of his contention that when party has an opportunity to file an appeal then proceedings under section 12 (2) C.P.C. Are not maintainable. He also relied upon cases reported in 1999 YLR 793, 2004 YLR 3104, 2009 SCMR 40, 2002 YLR 1046, NLR 1984 Civil 543, PLD 2002 Pesh. 84, 2004 CLC 1427, 2006 SCMR 594, in support of his contention that in proceedings filed under section 12(2) of the Civil Procedure Code only the original decree, judgment or order is to be set aside and no further relief can be granted.
4. The claim of the applicant is based on a registered sale-deed that was executed on behalf of respondent No,2 in her favour on 20-2-2008. The sale transaction that was entered into between respondent Nos.1 & 2 and made basis of consent decree is dated 1-9-2009 i.e, subsequent to the sale-deed in favour of the applicant. The applicant was admittedly not a party in Suit No,103 of 2009 in which consent decree was obtained. It was only when the applicant came to know that possession of the suit property has been taken over by respondent No,1 and title also stood transferred in favour of respondent No,1 that she filed present application under section 12(2) of the Civil Procedure Code.
5. As regards filing of earlier application under section 12 (2) of the Civil Procedure Code on the same grounds, I have carefully examined the signatures of the applicant who had filed J.M.
No,49/2009. Indeed this J.M. Has been filed in the name of present applicant but the applicant has not signed on this application. It has been signed by Mst. Afsar Iqbal. No power of attorney on behalf of the present applicant in favour of Mst. Afsar Iqbal was filed in J.M.No,49/2009 or made basis for filing the same to justify that it was filed on behalf of the present applicant. It was for this reason that on 2-12-2009 when J.M. No,49/2009 came up for hearing before this Court, applicant's counsel Mr. Suleman Junejo appeared and pointed out to the Court that J.M. No,49/2009 has not been filed by the applicant and therefore it may be dismissed. He also stated before the Court that the applicant intends to file application under section 12(2) of the Civil Procedure Code of her own to get the consent decree dated 9-3-2009 set aside. Before above referred contentions of the applicant's counsel could be considered by this Court on the next date of hearing, an urgent application for seeking withdrawal of J.M.No,49/2009 was moved on behalf of Mst. Afsar Iqbal's advocate. On such application, J.M. No,49/2009 was withdrawn from the Court. The contentions of applicant's counsel taken on 2-12-2009 remained unaddressed as obviously J.M.No,49/2009 stood withdrawn by a person who though filed it in the name of the applicant but was never authorized by the applicant to do so. In such circumstances, the argument of learned counsel for respondent No,2 that similar application bearing J.M.No,49/2009 was withdrawn therefore second application under section 12(2) of the Civil Procedure Code was not maintainable, is not tenable in law. It was clearly established from record that J.M. No,49/2009 was not filed by the applicant either directly or through attorney but was filed by a person, not authorized by the applicant.
6. While deciding application under section 12(2) of the Civil Procedure Code, the Court has to see whether the impugned order, judgment or decree has been passed at the back of the applicant without notice to him and the right that the applicant asserts in the subject-matter of dispute is legally enforceable right and has not become barred by time. In other words, had the suit been pending and the applicant had applied to be joined as a party in the suit, the Court would have considered him to be a necessary party. Thus, the Court has to first see that the impugned order, judgment or decree passed in a suit at the back of an applicant has taken away applicants right to contest the claim of the plaintiff.. If a person's rights are being infringed in proceedings in which he was either not made a party or even if was made a party was not duly served with the summons and therefore was not given the opportunity of being heard with regard to his claim in the subject- matter of dispute. Once the applicant establishes this, it is sufficient enough reason to grant him the relief provided under section 12(2) of the Civil Procedure Code. The applicant does not have to first establish in absolute terms his entitlement in the subject-matter of dispute before his application under section 12(2) of the Civil Procedure Code could be allowed. Burdening the applicant to such an extent would amount to converting an application filed under section 12(2) of the Civil Procedure Code into a regular suit. The application filed under section 12(2) of the Civil Procedure Code cannot proceed as if it is a regular suit. There cannot be a regular trial at the stage of deciding the application filed under section 12(2) of the Civil Procedure Code. It is only when the application under section 12(2) of the Civil Procedure Code is allowed and the order, judgment or decree is set aside and the applicant is joined as a party to the suit that he would be required to contest the claim of the plaintiff and establish his entitlement in the subject-matter of dispute.
Thus only after the application under section 12(2) of the Civil Procedure Code is allowed and the suit is revived that the respective rights and entitlements of the parties in the subject-matter of dispute would be determined_ If the applicant is called upon to first establish his claim in absolute terms before his application under section 12(2) in the Civil Procedure Code could be granted then this would also be contrary to the very object for which remedy under section 12(2) of the Civil Procedure Code was devised. This was not the intent and object of the legislature when it incorporated section 12(2) in the Civil Procedure Code. The remedy under section 12(2) of the Civil Procedure Code was provided to prevent an aggrieved party to file a regular suit for getting a decree, judgment or order set aside that was obtained by playing fraud and misrepresentation, as was the case prior to the incorporation of section 12(2) in the Civil Procedure Code. Hence, application under section 12(2) in the Civil Procedure Code cannot be allowed to proceed as a regular suit as it would give undue advantage to a person who on account of his own fraud or misrepresentation had obtained an order, judgment or decree, and enjoying its fruits. It would also amount to have two full trials with regard to same controversy i.e, one at the stage of deciding application under section 12(2) of the Civil Procedure Code and the other when the application is allowed and the suit is decided afresh.
7. With regard to second argument of learned counsel for respondent No,2 that present application seeking setting aside of a consent decree dated 9-3-2009, is not maintainable in law, as the consent decree dated 9-3-2009, was modified in J.M. No,Nil of 2009 and the modified decree has not been challenged, this argument too is misconceived because even if original decree stands modified, the moment the applicant establishes in proceedings under section 12(2) of the Civil Procedure Code that no effectual decree could have been passed in her absence then all modifications to the original decree at her back also stand annulled as the very basis for passing any decree in the matter stands nullified. When the basis to pass the decree falls then every right claimed on the basis of such decree also falls to the ground.
8. With regard to the other contention of the counsel for respondent No,2 that scope of section 12(2) of the Civil Procedure Code is limited i.e, at best its provisions could be attracted to set aside an order, judgment and decree but it cannot be invoked to nullify a registered sale-deed, suffice to state that when an application under section 12(2) of the Civil Procedure Code is granted and decree is set aside then every change that had taken place pursuant to such decree also stand nullified. On the basis of such decree if title in favour of any person was created, then it also falls to the ground, the moment the decree is set aside. Therefore, while allowing the application filed under section 12(2) of the Civil Procedure Code would not only be setting aside an order, judgment or decree but at the same time would also be nullifying every change that has taken place on account of such order, judgment or decree. A party may have got the order, judgment or decree executed in his favour from the Court which order, judgment or decree is subsequently set aside under the provisions of section 12(2) of the Civil Procedure Code. In such eventuality, the parties have to be relegated to the position where they were before such order, judgment or decree was passed. This is logical consequence of grant of application under section 12(2) of the Civil Procedure Code. In other words it is nothing but the fallout effect of nullifying the order, judgment or decree under the provisions of section 12(2) of the Civil Procedure Code. The annulment of the sale-deed in the present case is the fallout of setting aside of the decree under the provisions of section 12(2) of the Civil Procedure Code. Hence, the sale-deed that was executed in favour of respondent No,1 pursuant to the consent decree has to be declared as nullity, once the consent decree is set aside. In the present case, the applicant already held title to the disputed property in her favour on the basis of a registered sale-deed. The sale agreement that was executed by respondent No,2 in favour of respondent No,1 is subsequent to the sale-deed. This sale agreement executed by respondent No,2 without having any right, title and interest in the disputed property, was made basis to deprive the applicant's right in the disputed property and that took at her back on the basis of a consent decree that was surreptitiously procured in Suit No,103 of 2009. Thus by itself creates sufficient ground for setting aside the decree under section 12(2) of the Civil Procedure Code. The applicant should be given every opportunity to establish that subsequent to the transfer of title in her favour in relation to the suit property on 20-2-2008 on the basis of a registered sale-deed no transfer in favour of respondent No,1 could have been made by respondent No,2. Case-law relied upon by learned counsel for respondent No,2 is not attracted to the facts and circumstances of the present case. In this view of the matter, this application is allowed and the consent decree dated 9-3-2009 along with all its modifications, if at all there were any, is set aside and all charges in the title and possession that have taken place pursuant to the consent decree dated 9-3-2009 i.e, execution of sale-deed and transfer of possession in favour of respondent No,1 also stand nullified. Nazir shall take all necessary steps to restore possession of the suit property back to the applicant. The applicant shall be arrayed as defendant No,2 in Suit No,103/2009 and after filing of amended plaint shall be entitled to file written statement. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.