' MAZHAR ALAM KHAN MIANKHEL, J.---This single judgment in Civil Revision No, 63 of 2004 will also dispose of connected Civil Revision No,959 of 2007 as common questions of law are involved in both the petitions.
' These cases have a chequered history. Just after amalgamation of States of Dir, Swat and Chitral, a Land Disputes Inquiry Commission, was appointed by the Provincial Government vide Notification No, 66 S.O. (S.P.L.)/H.D./70 dated 8th October, 1970. The respondents in both the cases accordingly filed their claims before the Commission and ultimately, they were held entitled/granted decree regarding their property by the Deputy Land Commission on 24-1-1972. This decree in their name remained intact up to Federal Land Commission.
' After such exercise, settlement in. District Buner started and was completed in the year 1978. As per averments in the plaint of respondents, the property given to them by the Commission, was once again recorded in the name of Provincial Land Commission during the said settlement and the respondents, thus having no other option, were compelled to file a suit for declaration by claiming themselves to be the owners of the suit property and also sought for correction of Revenue Record.
The present petitioners (defendants therein) appeared and contested the suit by filing their written statement and they also cross-examined the witnesses of plaintiffs i,e, the present respondents, but later on they failed to appear and were placed ex parte and ultimately an ex parte decree dated 7-4-1982 was passed against them and in favour of present respondents. The present petitioners then filed an application for setting aside of the said ex parte decree but that was dismissed on the question of limitation and such findings were upheld up to the apex Court.
' The present petitioners, then filed present suit on 2-10-1989 by challenging the ex parte decree against them on the grounds of fraud, misrepresentation and want of jurisdiction as amendment in section 12 of C.P.C. Of the year, 1980 by introducing subsection (2), was not extended in the area, but their suit was dismissed vide judgment and decree dated 27-4-1994 not only on the ground of maintainability of suit but also on the ground that their efforts for setting aside ex parte decree dated 7-4-1982 had also failed. But the appellate Court set aside the finding of trial Court and sent back the case to the trial Court to decide the same on merits vide its judgment and decree dated 29-6-1994. After remand of the case, the suit of the present petitioners was dismissed vide judgment and decree dated 8-11-2001 only under section 11 of C.P.C., being barred by the principle of res judicata. Appeal of the present petitioners also met the same fate when the District Judge, Buner dismissed their appeal vide his judgment and decree dated 8-9-2003. Hence, present revision petition.
' Whereas the material facts giving rise to the connected Civil Revision No,959 of 2007, are that the petitioners therein had filed a suit for declaration in the year 2003 against the respondents, by claiming themselves to be the owners of the suit property situated in villages "Dokkada" and "Poland" but their claim was denied by the respondents. They, through this suit also challenged the ex parte decree dated 7-4-1982 in favour of the respondents which is also subject matter of connected Civil Revision No, 63 of 2004 ibid. The plaint was initially returned to the plaintiffs on 9- 12-2004 on the ground that Civil Court had got no jurisdiction under MLR 123. Appeal of the petitioners was also dismissed on 27-9-2005 but they were directed to file a petition under section 12(2) of C.P.C., if they feel themselves aggrieved of the decree in favour of present respondents.
Said findings were upheld by this Court in Civil Revision No,1494 of 2005 but were directed to file application under section 12(2) before the District Judge concerned. So, the present petitioners ultimately filed the present application under section 12(2) of C.P.C., but the same was dismissed without recording of any evidence on the question'of jurisdiction and dismissal of suit was maintained/upheld in the circumstances. Hence, present revision petition.
2. Learned A.A.-G., representing the petitioners in Civil Revision No,63 of 2004, submitted that the ex parte decree passed in favour of respondents in an earlier Suit bearing No, 289/1 was the result of misrepresentation, fraud and want of jurisdiction; that the only property decreed in their favour was of village Quosar, but the respondents fraudulently and collusively included other properties of villages "Dokkadda" and "Polaand" in their suit which was not part and parcel of the original decree of Land Commission and this aspect, on the face of it, is an act of fraud and misrepresentation. He next contended that the provisions of section 12(2) were extended in the area on 16-1-1999, so the present separate suit was filed to challenge the above-said ex parte decree which, according to law, is maintainable in all respects. His next' argument was that the dismissal of their suit on the question of res judicata alone without recording evidence and considering all the above legal aspects of the case, is unlawful and without jurisdiction.
' The learned counsel for the petitioners in connected Civil Revision No,959 of 2007, submitted that petitioners were non-suited without providing them a chance of hearing and producing any evidence in support of their claim which is against the natural justice. He next contended that the questions involved in the case were of the nature which required recording of evidence, but dismissal of their application under section 12(2) of C.P.C., without recording of evidence, is not warranted under the law and requested for setting-aside of the same. His next argument was that they were' not party in the original suit of respondents and they got knowledge of the same when the respondents filed suit for ejectment against them, hence their application under section 12(2) was within time.
' As against that, the learned counsel for respondents submitted that the property was initially decreed in favour of the respondents by Land Commission, but just after the same, settlement proceedings in District Buner, started and their property was unlawfully recorded in the Revenue Record in the name of Land Commission, so the only way left with the respondents, was to file a suit for declaration and that was rightly decreed in their favour. He next contended that since the petitioners of Civil Revision No,63 of 2004 were, well aware of the suit filed against them and they later on absented themselves. So, were rightly placed ex parte which culminated into ex parte decree. His next argument was that their application for setting aside ex parte decree was dismissed and the decree remained intact up to the Apex Court, so the same has attained finality between the parties and the petitioners cannot challenge the same by way of present suit. While replying to the other connected petition, the learned counsel submitted that their suit and subsequently, their application under section 12(2), C.P.C., was hopelessly time-barred, as the property was given to the respondents by the Land Commission in the year 1972 and after decades the petitioners filed present suit. He next contended that the status of the petitioners was that of tenants throughout and they had never lodged their claim before Land Commission, so cannot seek the same relief by way of present petition and the jurisdiction of Civil Court is barred by the provisions of MLR 123.
4. The learned counsel for the parties were heard and record of the case was gone through with the valuable assistance of the learned counsel for the parties.
5. Perusal of the record' would reveal and establish the fact that there had been a claim of present respondents against the ex-Ruler of Swat before the commission appointed by the Provincial Government vide Notification No,66 S.O. (SPL)/HD/70 dated 8th October, 1970 working under Martial Law Regulation No, 123 (MLR 123). Commission resolved the dispute in their favour vide order dated 24-11-1972 and the same was upheld up to Federal Land Commission. As per stance of the respondents, their landed property was incorporated wrongly in the name of Provincial Government as surrendered lands of the Ex. Ruler, in the first ever settlement in the area. After getting knowledge of the said wrong entries, they filed their suit for declaration and the Provincial Government contested the same but during the course of trial, was placed ex parte and ultimately an ex parte decree was passed in favour of respondents on 7-4-1982. No doubt, one round of litigation by the Provincial Government for setting aside ex parte decree was decided against the Provincial Government up to the Apex Court. That decision, on the face of it, reflects that the prayer was refused only on the ground of limitation. The detailed judgment dated 29-4-1989 of this Court in Civil Revision No, 54 of 1988, present on file confirms this fact.
6. The Provincial Government then filed its separate suit on 23-9-1989 by alleging that the resolution of dispute by the commission was with regard 1214 Kanals 16 Marla situated in village "Quosar" whereas the respondents got the ex parte decree regarding property situated in villages "Dokkada" and "Polaand" measuring 3987 Kanals, 16 Marlas besides the above said property of Quosar and this was only because of absence of Revenue Record in the area. The Provincial Government through its suit challenged the ex parte decree ibid on the grounds of fraud, misrepresentation and want of jurisdiction. Though by way of introducing subsection (2) in section 12 of C.P.C. Vide amendment Ordinance X of 1980, a special procedure for challenging a decree was introduced but being a PATA region, this amendment was not extended by the time in the region under Article 247(3) of the Constitution of the Islamic Republic of Pakistan, 1973. So, the suit of the Provincial Government in the circumstances was very much competent as was done prior to the amendment ibid. The objection of the respondents in the circumstances has no force.
7. Now comes the question as to whether such type of suit can be termed as barred by section 11 of C.P.C. As has been declared so by the Courts below. Answer to this simple question would be plumb "No". As far as dismissal of application for setting aside ex parte decree up till Apex Court, to my humble opinion, would also have no bearing on the present suit as the question dealt with therein was only under Order IX, Rule 13 and that too was refused on the question of limitation as discussed herein above. The questions of fraud, misrepresentation and want of jurisdiction were never considered. The only way to challenge an order/judgment and decree was a civil suit prior to the amendment ibid in section 12 of C.P.C. And thereafter through an application under section 12(2) as prescribed in the amendment ibid. So, the suit was maintainable in all respects and obviously through this suit questions of fraud, misrepresentation and want of jurisdiction have to be considered. Now for the purpose of convenience this suit can also be converted into an application under section 12(2), C.P.C. Reference in this regard can also be made to Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCM R 1744) and Amir Muhammad and another v. Mst. Begum Jan and others (PLD 2011 Peshawar 224).
8. The questions alleged in the instant plaint if considered would certainly require recording of evidence and such type of suit cannot be laid to rest in a slipshod and cursory manner as was done by the Courts below circumstances is of the view that the judgments and decrees in both the civil revisions are against the law and without jurisdiction so, cannot be left to remain in field. The result would be that both the revision petitions i,e, Civil Revision No, 63 of 2004 and Civil Revision No, 959 of 2007 have to be allowed by setting aside the findings therein of the Courts below and both the cases have to go back to one and the same Court just to avoid any further legal complication.
Hence, are sent to the Court of Senior Civil Judge, Buner to decide the same in the light of observations made above. This case being decades old, be decided on priority basis but within three months and unnecessary adjournments be avoided by taking stern action.
' Both the revision petitions are allowed.
9. Now comes the connected Civil Revision No, 959 of 2007. The case of petitioners therein simply is that they got the knowledge of the ex parte decree dated 7-4-1982 ibid in favour of respondents when the respondents filed a suit for their ejectment from the suit property. Though they too, had filed a civil suit in the year 2003 when the amendment of section 12 of C.P.C. Ibid was very much extended in the PATA region on 15-1-1999. So, very rightly they were asked to challenge the decree by way of an application under section 12(2), C.P.C.
10. Perusal of their application also reveals that the questions involved therein, being questions of facts, would also require recording of evidence to resolve the same.
11. This Court in the given