' ATIR MAHMOOD, J.---Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, the petitioners have challenged the order dated 4-3-2010 passed by the learned Additional District Judge, Jampur, District Rajanpur, who accepted the revision petition filed by respondent No.2 and set aside the order dated 7-9-2009 passed by the learned Civil Judge Class-II, Jampur, whereby the application under section 12(2) C.P.C. Filed by the petitioners was accepted.
2. Brief facts of the case are that the petitioners and respondent No.3 filed an application under section 12(2), C.P.C. In the Court of Civil Judge, Jampur to challenge the validity of judgment and decree passed on 15-11-1997 in a declaratory suit filed by respondent No.2 against Basharat Ali, predecessor of the applicants and through the impugned decree, plaintiff has been declared owner of 215 Kanals and 12 marlas of land owned by Basharat Ali, defendant. The declaratory suit was filed on the basis of some undated agreement to sell. Respondent No.2 appeared in the court in response to the notice issued by the court and filed his reply. After filing the reply the learned trial Court framed the issues. Thereafter the applicants during the pendency of said application, applied for impleading Mr. Zia-ud-Din, Advocate as respondent in the application under section 12(2), C.P.C., who allegedly appeared in the suit on behalf of the defendant. After hearing the parties the learned trial Court dismissed the said application on 7-3-2006. The applicant Syed Manzoor Hussain appeared in the trial Court as a witness as A.W.-1 and also produced documents.
Respondent No.2 appeared as RW-1 in his oral evidence and produced documentary evidence as well. The learned Civil Judge, Jampur accepted the application under section 12(2), C.P.C. Filed by the applicants/petitioners vide its order dated 7-9-2009 and by setting aside the judgment and decree passed on 15-11-1997, suit filed by respondent No.2 was restored. Feeling dissatisfied respondent No.2 filed a revision petition before the learned Additional District Judge, Jampur against the order dated 7-9-2009 which was accepted vide its judgment dated 4-3-2010 and dismissed the application filed by the applicants.
3. Learned counsel for the petitioners has contended that the impugned judgment dated 4-3-2010 passed by the learned Additional District Judge, Jarnpur is illegal, unwarranted and is liable to be set aside; that the learned Additional District Judge, Jampur while passing the impugned judgment has not applied his judicious mind; that the suit for declaration on the basis of agreement to sell was not maintainable and the learned Additional District Judge, Jampur has absolutely ignored this fact of the case and without giving findings on this point, reversed the finding recorded by the learned trial Court on application under section 12(2), C.P.C.; that respondent No.2 previously had been obtaining fake decrees from the courts which have been set aside and the present case was also a result of that series; that the address of Basharat Ali was wrongly mentioned in the suit; That Syed Manzoor Hussain Shah neither appointed Mr. Zia-udDin Khan, Advocate as his counsel nor recorded his statement and the trial Court rightly passed the order; that it is admitted from the evidence produced by both the parties that the applicants are in possession of the property in dispute; that the applicants have fully proved that fraud has been committed while obtaining the impugned judgment and decree; that the findings recorded by the learned trial Court while accepting application under section 12(2), C.P.C. Have been reversed by the learned Additional District Judge without any legal reasons, therefore, the impugned order is liable to be set aside. He has relied upon the judgments reported as Mst. Rasool Bibi through Legal Heirs v. Additional District Judge, Sialkot and another (PLD 2006 Lahore 181), Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12) and Ilahi Bakhsh v. Sheikh Muhammad Sadiq and 2 others (2005 CLC 1704).
5. On the other hand, learned counsel for respondent No. 2 has vehemently opposed this petition and supported the impugned order. Learned counsel for respondent No. 2 has contended that the impugned order is well-reasoned and the learned Additional District Judge has committed no illegality or irregularity in delivering the same, therefore, this writ petition is liable to be dismissed.
6. I have heard the learned counsel for the parties and have also gone through the available record.
7. The facts which are admitted by the parties are that a suit for declaration with confirmation with possession was filed by respondent No.2 against one Basharat Ali, the father of the present respondent No.3. On 24-10-1997, summonses were issued on the same day to the said defendant for 15-11-1997 and on that day one Zia-udDin, Advocate appeared on behalf of the defendant along with alleged general attorney namely Syed Manzoor Hussain Shah (present petitioner No.2) and got recorded a cbnceding statement for decreeing the suit. In view of the conceding statement the trial Court decreed the suit on the same date i.e. 15-11-1997 without asking for filing the written statement.
8. Through the impugned judgment dated 4-3-2010, the present petitioners have been non-suited on two grounds firstly that the application under section 12(2), C.P.C. Was barred by time as the decree was passed on 15-11-1997 and the application was filed after a delay of 5-1/2 years and secondly that the petitioners failed to implead Zia-ud-Din, Advocate as respondent or to produce him as a witness. From the perusal of the impugned judgment and the evidence of the parties, it reflects that the revisional Court failed to take into consideration the provisions of section 18 of the Limitation Act, 1908 which provide that the application under section 12(2), A C.P.C. Can be filed within three years from the date of knowledge. In the present case the date of knowledge has been mentioned as 29-6-2003 while filing the application under section 12(2), C.P.C. And thereafter when Syed Manzoor Hussain Shah, petitioner No.2 appeared as AW-1, he categorically asserted his knowledge on the said date. In spite of a lengthy cross-examination, respondent No.2 could not controvert the date of knowledge of the petitioners. The respondent No.2 appeared as his own witness as RW-I. He deposed that Syed Manzoor Hussain Shah along with Zia-ud-Din, Advocate appeared before the trial Court and made the conceding statement. As per the statement of AW-1, Syed Manzoor Hussain Shah was identified by Zia-ud-Din, Advocate. In cross-examination, he stated that he cannot tell whether the summonses were issued in the name of Basharat Ali, defendant or not. He further stated that he cannot tell that what was written in the suit for declaration against the defendant Basharat Ali. He further stated that Basharat Ali could not appear before the court on account of his old age but his attorney Syed Manzoor Hussain Shah appeared over there. He also could not tell that what was written in the power of attorney in favour of present respondent No.2. However, he denied the suggestion that a fictitious person was produced before the trial Court to get the decree in his favour. In my opinion, the revisional Court committed a grave jurisdictional error while ignoring the provisions of section 18 of the Limitation Act, 1908. The guidance is sought from the case reported as Mst. Rasool Bibi through Legal Heirs v.
Additional District Judge, Sialkot and another (PLD 2006 Lahore 181). The relevant portion of the said judgment reads as under:- "It is the case of the petitioners that the decree was procured fraudulently and by misrepresentation and their predecessor Jehan Khan and they were kept in dark about the passing of the decree in a fraudulent manner, thus according to the above section, the period of limitation, which is prescribed for filing an application under section 12(2), C.P.C. Under Article 181, shall commence when the petitioners attained the knowledge in August, 1993, thus the application has been filed within the period of the limitation and the petitioners were not supposed to explain why the application was not filed within the prescribed period; however, if the period of limitation has expired as no case under section 18 was made, then obviously the application under section 5 of the Limitation Act, if applicable to such cause, should have been moved by the petitioner. The view taken by the learned revisional Court is absolutely misconceived and illegal".
' The guidance is also sought from the judgment reported as Sheikh Muhammad Sadiq v. Elahi Baldish and 2 others (2006 SCMR 12). The relevant portion of the said judgment reads as under:-- "This is settled law that limitation for setting aside an order obtained through fraud or misrepresentation, would start from the date of knowledge and in the present case, the respondent has categorically stated that he filed application under section 12(2) C.P.C.
Immediately on coming to know about the decree in 1986, therefore, in absence of any evidence to the contrary, the presumption would be that respondent had no knowledge of decree, before 1986 and consequently, we would take no exception to the verdict given by the High Court on the question of limitation".
' As regards the second reasoning which prevailed upon the revisional Court that the counsel namely Zia-ud-Din, Advocate, who appeared on behalf of the judgmentdebtor/defendant was not impleaded as party while filing the application under section 12(2), C.P.C. Is also without substance.
It is evident from the perusal of the record that an application under Order I, Rule 10, C.P.C. Was filed on behalf of the petitioners to implead the said Advocate but that application was seriously opposed by respondent No.2/decree-holder and was turned down by the court below. Since the petitioner discharged this onus to prove that the said Zia-ud-Din, Advocate was never appointed as counsel of Basharat Ali (deceased defendant) through his general attorney Syed Manzoor Hussain Shah then the onus shifted to respondent No.2/decreeholder to rebut the same through production of his evidence and in that eventuality respondent No.2 would have produced the said witness by summoning him through the court to establish that the said Advocate was legally appointed counsel for the judgment-debtor. The petitioners have also produced certified copies of civil cases as Exhibit A-4 to A-10, wherein respondent No.2 has been benefited in the same circumstances. Exh. P-9 is a copy of the suit for declaration regarding property measuring 72 kanals and 9 marlas of land which was filed on 6-10-1997 and was decreed on 23-12-1997 in the just identical manner wherein the said Advocate Zia-udDin was the counsel for the other side who conceded the claim of respondent No.2, the plaintiff in the said suit. All the evidence produced by the petitioners has not been rebutted or controverted by production of any credible evidence by respondent No.2. Without touching the other merits of the case which may affect the rights of the either party, it is held that the judgment dated 4-3-2010 passed by the learned Additional District Judge, Jampur is not sustainable in the eye of law as it has been passed without application of judicious mind and suffers from material illegality and material irregularity.
9. For what has been discussed above, this petition is allowed by setting aside the judgment dated 4-3-2010 passed by the learned Additional District Judge, Jampur and the order dated 7-9-2009 passed by the learned Civil Judge Ist Class, Jampur is upheld.