JUDGMENT SHAUKAT UMAR PIRZADA, .1.---This Writ Petition is directed against the order dated 15-6- 1999 passed by the learned Additional District Judge, Khanewal and order dated 1-9-1997 and judgment and decree dated 2-7-1970 passed by the learned Civil Judge, Khanewal.
2. The brief facts giving rise to this writ petition are that petitioners are the owners of land measuring 40-kanals and 10-marlas situated in Mauza Mubarakpur, Tehsil Kabirwala, District Khanewal (herein-after called the land in dispute). A suit for declaration was filed by maternal- grandfather. Of the petitioners, namely, Rehmat Ali on 12-5-1970 in respect of the land in dispute against the petitioners, who were then minors, through their father Abdullah as their guardian-ad- item, alleging that their father (guardian ad item) had sold the land in dispute to him for a sum of Rs.10,000 and had received the entire consideration amount but now refusing to transfer the same in his favour. In the said suit, the petitioners' father (guardian ad item) appeared and filed consenting written statement on their behalf on 2-7-1970. In view of the said written statement, learned Civil Judge decreed the suit in favour of Rehmat Ali (plaintiff) on 2-7-1970 and in pursuance thereof Mutation No.224 dated 19-11-1970 was sanctioned in his favour, who then alienated the said land to Zafar Yaqub Ali Khan, the predecessor-in-interest of respondents Nos.
6(A) to 6(1). Now, the petitioners have filed an application under section 12(2), C.P.C. For setting aside the consent judgment and decree dated 2-7-1970 and subsequent mutations cmenating therefrom by alleging therein that the said decree was a result of fraud and mis-representation, as also of collusion between their father and maternal grand father Rehmat Ali. It was further alleged that the said transaction was in fact without consideration, against facts, based on mala fide, as such not binding on them. It has been further averred that at the time of the said so-called transaction, they were minors and their father was not appointed their guardian ad item in accordance with law, thus, the said decree and subsequent mutations are illegal, therefore, be set aside. Respondents Nos. 6(A) to 6(I) contested the said application by raising certain preliminary objections inter alia that the application is badly barred by time and respondent No.5-A, who is the mother of the petitioners, had earlier on their behalf as next friend filed on 3-10-1974 a suit for declaration for setting set aside the impugned judgment and decree dated 2-7-1970, which was dismissed under Order IX, Rule 8, C.P.C., therefore, the instant application under section 12(2), C.P.C.
Is not maintainable in view of the provisions of Order IX, Rule 9, C.P.C. The learned civil court after hearing the learned counsel for the parties dismissed the application under section 12(2), C.P.C. On 1-9-1997. Feeling aggrieved by the said order, the petitioners filed revision petition, which was also dismissed on 15-6-1999 by the learned Additional District Judge, Khanewal, hence, this writ petition.
2A. Learned counsel for the petitioners states that orders of both the courts below are illegal and unlawful, as the petitioners' application under section 12(2), C.P.C. Has been summarily dismissed by disregarding the fact is are involved that certain serious questions of law and fact that could be resolved only after framing of issues and recording of evidence of the parties, which exercise has not been done in the instant case. This omission, which is very material, has rendered the impugned orders liable to be set aside. It has been contended that the petitioners having come to know about the said transfer of their land in dispute, they have promptly filed the instant application, therefore, both the courts below have illegally held that the said application is barred by time.
3. Learned counsel for the contesting respondents has stated inter alia that the instant application under section 12(2), C.P.C. Is not maintainable, as the earlier suit filed by respondent No.5-A on behalf of the petitioners was dismissed under Order IX Rule 8, C.P.C., therefore, instead of challenging the said judgment and decree dated 1-7-1997 through the said application, the proper course for them was to seek their remedy under Order IX Rule 9, C.P.C. In order to have the dismissal order of the said suit set aside. He has supported the impugned orders of the Courts below and stated that the writ petition be dismissed.
4. I have heard learned counsel for the parties and perused the available record.
5. A careful examination of the record reveals that the impugned order of the learned lower revisional court dated 15-6-1999, upholding the order of the learned civil Court dated 1-9-1997 is well reasoned, based on record, and in accordance with law. The record further reveals that the judgment and decree dated 2-7-1970 has been earlier challenged by the petitioners through their mother respondent No.5-A, who on 3-10-1974 filed a suit for declaration seeking setting aside the consent decree dated 2-7-1970. Admittedly, the suit was dismissed under Order IX, Rule 8, C.P.C.
And for this reason the contesting respondents Nos.6-A to 6-1 in their reply to the said application have taken objection inter alia that the principle of res judicata is applicable in the facts and circumstances of the instant case. It is a matter of common knowledge that prior to the enactment of section 12(2), C.P.C., any order, judgment or decree obtained by fraud or misrepresentation or want of jurisdiction was challenged through a separate suit and after enactment of the said subsection through Ordinance X of 1980, the remedy through the separate suit was barred. The said suit filed by respondent No.5-A on behalf of the petitioners was prior to the enactment of the aforesaid subsection, therefore, it has been rightly held by the learned courts below that application under section 12(2), C.P.C. Not maintainable and the remedy available to them was to move under Order IX, Rule 9, C.P.C. In order to have the order A of dismissal of the suit under Order IX, Rule 8, C.P.C. Set aside, as fresh suit is barred. For facility of reference, Order IX, Rule 9, C.P.C. Is reproduced as under:--
(9) Decree against plaintiff by default bars fresh suit.---(1.) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Filing of a fresh suit under the aforementioned stances circumstances has been barred and remedy therefor has been substituted with section 12(2), C.P.C., which reads as follows:--
(12) Bar to further suit.---(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not be a separate suit.
The remedy available to the 1B petitioners was to move under Order IX, Rule 9, C.P.C. For seeking setting aside the order/judgment of dismissal of their earlier suit filed through their mother/respondent No.5-A rather than to move the instant application under section 12(2), C.P.C., therefore, the same has been rightly dismissed by the courts below. As regards the point of limitation, the findings of the courts below are comprehensive, in accordance with the record and law. The instant application under section 12(2), C.P.C. Has been initially moved by petitioner No.1, who is younger than respondents Nos.2 and
3. Admittedly, his date of birth is 16-1-1966 as per his school leaving certificate, therefore, he was 20 years of age when the application under section 12(2), C.P.C. Was filed, which was patently barred by time as the petitioners have already challenged the impugned decree dated 2-7-1970 through an earlier suit, which was dismissed on 14-4-1976, therefore, they cannot claim that the said judgment and decree was not within their knowledge when they became major. Interestingly, the application under section 12(2), C.P.C. Was initially filed by petitioner No. 1 by impleading his elder brothers i.e. Petitioners Nos.2 and 3 as respondents therein, but later on, they got themselves transposed as the petitioners, which was done with mala fide intention to circumvent and defeat the limitation, therefore, both the courts below have rightly found the application under section 12(2), C.P.C. As badly barred by time. The petitioners have also not pleaded any conflict of interest between them and their 'father, who has brought them up and they remained with him till his death. Moreover, Rehmat Ali is the real maternal grand father of the petitioners in whose favour the land in dispute was transferred by their father through the impugned decree of the court, therefore, no fraud has been committed with the petitioners and the reason that their mother has differences with their father, hence, suit property was transferred to their maternal grandfather has been rightly held by the learned lower appellate court as a funny story. Both the courts below have rightly concluded that the petition under section 12(2), C.P.C. Has been filed by the petitioners with mala fide intention and there is no element of fraud and misrepresentation involved in passing the impugned judgment and decree dated 2-7-1970. As regards the petitioners' contention that the said application should have been decided after framing of issues and recording of evidence, suffice it to say at the cost of repetition that application under section 12(2), C.P.C.. Has been filed with mala fide intention, which was otherwise not maintainable, as admittedly they had earlier challenged the impugned judgment and decree dated 2-7-1970 through a suit filed by their mother as their next friend, that was dismissed long ago, therefore, under such circumstances, there was no need of framing issues and recording of evidence in the instant case. However, the concurrent findings of the courts below on this contention are well reasoned and in accordance with law. This view is supported by case-law Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCM R 1050) and relevant portion is as follows:-- "The remedy of civil suit available for setting aside the judgment and decree obtained by fraud and misrepresentation prior to the enactment of subsection (2) of section 12, C.P.C. Was taken away by this subsection but this remedy would not be available like a regular suit and the Court may dispose of an application under section 12(2), C.P.C. Without framing issues, recording evidence of the parties and following the procedure for trial of the suit."
This view is also supported by case-law reported in Mst. Hasina Khatoon and 2 others v. United Bank Ltd. And 6 others 1993 M LD 1088 and relevant portion is as follows:-- "It is clear that an application under section 12(2), C.P.C. Is, on its very face, improper, mala fide and having been made only to protract the proceedings and to abuse the process of the Court, it can be dismissed without framing any issues or recording any evidence. In fact, this is not the only judgment on the point and there is a plethora of reported cases in supported of this view and in fact there can be no other view because if every application under section 12(2), C.P.C. Were to be decided after framing issues and recording evidence, however, improper or mala fide it appears on its very face with no doubt left of it having been made with the sole purpose of protracting the proceedings and to abuse the process of the Court, there would be no need to litigation and every defeated litigant would come forward and move an application under section 12(2), C.P.C. And sit for case and mock the judicial process of the Court."
In the light of the above case-law, the concurrent findings of the Courts below are unexceptionable, therefore, upheld. Moreover, learned counsel for the petitioners has failed to point out any illegality or error in the impugned orders/ judgments of the Courts below, warranting interference by this Court in writ jurisdiction.
6. In view of what has been discussed above, this petition is without merit, hence, dismissed.