' MUHAMMAD EJAZ SWATI, J.--- The predecessor of the petitioners namely Syed Muhammad son of late Nabi Bakhsh filed a suit for Declaration, Possession, Cancellation, Correction, Damages and Permanent Injunction against the respondents Nos,1 and 2, which was decreed by the Senior Civil Judge, Gwadar (hereinafter the "trial Court") vide judgment and decree dated 21st February, 2009.
The respondent No,4 challenged the afore-referred judgment and decree by way of filing application under section 12(2), C.P.C. on the ground of fraud and misrepresentation. The trial Court vide order dated 19th July 2012 (hereinafter the. "impugned order") accepted the application and set aside the judgment and decree dated 21st February, 2009 and also restored the mutation entry Nos, 16, 17, 35 and 36 of Khewat and Khatooni No,40/40, Khasra No,115/2, 116, which was cancelled through execution in proceedings of decree dated 21st February 2009. The petitioners initially challenged the impugned order by way of filing Civil Revision Petition No 01 of 2012 before the District and Sessions Judge. Gwadar which was not entertained due to lack of pecuniary jurisdiction and the revision petition was returned to the petitioners with direction to present the same before the proper forum vide order dated 29th March, 2013.
2.The instant petition was filed on 21st June, 2013 assailing the impugned order dated 19th July, 2012.
3.The learned counsel for the petitioners contended that the respondent No,4 in the application under section 12(2), C.P.C. had raised factual controversy, which was required consideration after framing issues and adducing evidence, but the trial Court without framing issues dilated upon the same and re-called the judgment passed in favour of the petitioners; that no element of misrepresentation was pleaded in the application under section 12(2), C.P.C. nor during the course of arguments, any substance was before the trial Judge, therefore, findings of the trial Court in respect of alleged fraud and misrepresentation are based on presumptions; that the trial Court, though mentioned that the case of the respondent No,4 was scanned, but no reference of evidence in this respect had been given, therefore, the findings of the trial Court in this respect are also based on surmises and conjectures; that after acceptance of application under section 12(2), C.P.C. and setting aside of the judgment dated 21st February, 2009, the matter revives and legally the trial Court was required to have proceeded with the matter on merits and decided the same, but no further proceeding has been directed by the trial Court, which resulted grave miscarriage to the petitioners.
' The learned counsel for the respondent No,4, on the other hand contended that the predecessor of the petitioners Syed Muhammad had obtained a decree dated 21st February, 2009 by committing fraud through misrepresentation. He further submitted that the petitioners prior to filing of instant suit had also filed two other suits, wherein he admitted the sale of the property to other persons, however, those suits were withdrawn with permission to file fresh, but when fresh suit was filed, the necessary parties, to whom properties were sold had not been made party and thus, in a concealed manner obtained the decree; that the trial Court after considering the admitted documentary evidence including orders of the Court passed the impugned order which is based on proper appreciation of law. He further pointed out that the instant petition is also barred by time therefore, is liable to be dismissed.
4. We have heard the learned counsel for the parties and perused the record of the case. The respondent No,4 had challenged the judgment and decree dated 21st February 2009 passed by the trial Court. The respondent No,4 while filing application had annexed documents/ previous suits filed by the predecessor of the petitioners indicating the facts that Syed Muhammad had filed previous suits in respect of same Khasra numbers, wherein the facts related to sale of the properties were also mentioned. Since these documents were judicial record of the Court and there was no controversy between the parties in this respect, therefore, consideration of the trial Court in respect of concealment of facts and fraud on the part of the predecessor of the petitioners are based on the documents, to which presumption of truth was attached, even otherwise, there was no need of framing issues in this respect. It appears that the trial Court after considering the legal and factual aspects of the matter had passed the impugned order and found that the respondent No,4, being necessary party in the suit, was not impleaded, and thus, a valuable right of the respondents was infringed, therefore, acceptance of the application under section 12(2), C.P.C. and setting aside of the judgment and decree dated 21st February, 2009, culminates revival of the suit to entitle the parties to contest the same on merits and gets a decision in accordance with law. The learned counsel for the respondent No,4 submitted that since there was sufficient material on record, therefore, the trial Court while deciding the application under section 12(2), C.P.C. has rightly not revived the suit. This contention of the learned counsel for the respondent No,4 is not tenable, because if the Court finds that a judgment and decree has been obtained or alleged to have been obtained on the basis of fraud and misrepresentation, on acceptance of the same, the suit of the plaintiff shall automatically stand revived and the applicant (under section 12(2), C.P.C.) will file his written statement and then joint issue on the merit of the case, however, the trial Court is also competent to pass an order in view of Order VII, Rule 10, C.P.C. in case the Court lacks jurisdiction of the original suit, however, when there is controversy of facts or of law between the parties in the main suit while accepting the application under section 12(2), C.P.C., the suit cannot be dismissed, but the Court after revival of the suit shall proceed the matter by impleading the applicant (under section 12(2), C.P.C.) as a party and then after providing opportunity to the parties decide the case on merits. Reference in this respect is to be made to the case of Haji Farman Ullah v. Latif-ur- Rehman, 2015 SCM R 1708, wherein the Hon'ble Supreme Court of Pakistan observed as under: "If after the contest of the application under section 12(2) C.P.C., the court comes to the conclusion that the decree did suffer from vice as is stipulated by the section, it shall accept the same and as a general and ordinary rule and matter of course, the suit of the plaintiff shall stand revived and thereby give a chance to the defendant (the applicant under section 12(2) to file his written statement, for the purposes of setting up his defence in the main suit. Thereafter, the case shall be tried and decided on its own merits per the law prescribed for a suit (after the revival thereof). It is in very exceptional, special and extra ordinary circumstances where e.g. the plaint does not disclose a cause of action or is barred under the law, that while accepting the application (under the provisions of section 12(2), C.P.C), the court may also reject the plaint or even dismiss the suit for want of jurisdiction, where the jurisdiction of the court is clearly and undoubtedly barred under the law and there is no valid reason to revive and try the suit which the court otherwise has no jurisdiction to entertain and adjudicate upon. In this context, it may be pertinent to mention that in appropriate cases of want of jurisdiction, the court while accepting the application under section 12(2), C.P. C. may order for the return of the plaint under Order VII, Rule 10, C.P.C. so that the matter is tried by a court of competent jurisdiction. But where there is a controversy of facts or of law between the parties in the main lis, while accepting the application (under section 12(2), C.P.C.), the suit cannot and should not be dismissed."
5. In the instant case, the trial Court while accepting the application under section 12(2), C.P.C. though set aside the judgment and decree dated 21st February, 2009, but has neither revived the suit nor made any direction to implead the respondent No,4 as party nor proceeded the suit on merits, therefore, to such extent, the findings of the trial Court are contrary to law and void. In the circumstances, the contention of the learned counsel for the respondent No,4 that petition is barred by time in view of second limb of impugned order, which appears to be contrary to the merits of the case cannot be sustained, therefore, this petition is partly allowed, the impugned order dated 19th July, 2012 to the extent of setting aside of judgment and decree dated 21st February, 2009 is sustained, however, after acceptance of the application under section 12(2), C.P.C. the suit has been revived and the case is remanded the trial Court with direction that after impleading the respondent No,4 as defendant, the matter be proceeded with on merits in accordance with law.