Through instant revision petition, the petitioner Shoaib-urRehman & two other, have questioned the judgment dated 30.11.2015, passed by the learned Additional District Judge-I, Bannu whereby application u/S. 12 (2), CPC # 01 of 201 5 was dismissed.
2. Brief facts of the case are that present Respondent No, 1 filed appeal before the Court of learned District Judge, Bannu against Anayatullah & 15 others and had challenged the judgment and decree of Civil Judge learned trial Court Bannu dated 18.3.1998 to the extent of market value, determined by the trial Court. Same civil appeal was entrusted for disposal to the then learned Additional District Judge, Bannu and was disposed of on the basis of compromise vide order dated 15.9.1999 and accordingly the market value of suit land was determined with the consent of the parties as Rs, 40865/25/-.
3. It is pertinent to mention here that the present petitioner and Respondents No, 2 to 14 never challenged the original judgment and decree dated 18.3.1998 in favour of Respondent No, 1 Abdul Hadi and only he i,e, pre-emptor, the then decree holder, challenged the same judgment and decree of the trial Court that also only to the extent of Issues No, 5 & 6 regarding determination of market value and same was decided in the light of above said compromise between parties and the decree of learned trial Court was modified.
4. The present petitioner and two other Sohail Khan alias Soliail ur Rehman son of Muhammad Hanif and Sultan Ayaz son of Salabat Khan r/o Tarkhoba Kala had filed application u/S. 12 (2) of CPC and had challenged the order/decree of the appellate Court on 06.01.2015 on the ground that applicants at the time of modified decree by the appellate Court were minors and the same pre- emption suit was decreed against them and Respondent No, 2 to 14 while their father was not authorized to effect compromise at appellate stage on the plea that their father and brothers were not legally appointed guardian for the purpose of property under pre-emption suit. So the impugned judgment passed by the then learned appellate Court vide order dated 15.09.1998 is fraudulent, result of mis-representation and is liable to be set aside due to want of jurisdiction.
5. In response to the above said application u/S. 12(2), CPC the learned appellate Court summoned the respondents amongst them, Respondent No, 1 submitted his reply and thereafter, hearing both the learned Counsel, the said application was dismissed being declared as time barred.
6. The, learned counsel for petitioner argued that the learned Court below had not considered the grounds and arguments advanced by him; he further added that at the time of passing of judgment/decree by the appellate Court, the petitioners were minors and decree passed against the minors is nullity in the eye of law and prayed for the acceptance of the instant petition.
7. Argument in motion heard and record perused.
8. From the perusal of record it reveals that originally preemption suit was filed by the present Respondent No, 1 against one Anayatullah Khan and 15 other, This suit after full-fledged trial was decreed in favour of Respondent No, 1 vide judgment and decree dated 18.3.1998.
9. The present petitioners and other Respondents No, 2 to 14 who then contested the suit on their own behalf and on behalf of minors as their next friend by submitting their 'Wakalatnama' and written statement vide order Sheet No, 10 dated 25.06.1996. Thereafter, defendants closed their evidence by producing Muhammad Siddique, the father of the present Petitioner No, 1 as DW1 and Sheikh Hassan as DW2 and closed their evidence on 05.03.1998.
10. The learned trial Court after hearing both the learned counsel decreed the suit and the present petitioners and Respondents No, 2 to 14 did not avail the remedy u/S. 96 of CPC by filing civil appeal against that judgment dated 18.03.'1998. However, present Respondent No, 1 filed regular civil appeal against the same judgment to the extent of findings on Issues No, 5 & 6 according to which the learned trial Court fixed the market value of the suit land according to the registered sale deed.
11. At the appellate stage matter was patched up between the parties and the market value of the suit land was mutually agreed and fixed as Rs, 40865/25/-, so the decree to that extent was modified vide order/judgment and decree dated 15.09.1999 of learned appellate Court.
12. The present petitioners were asked, to produce original NIC by the learned Court below and this Court also according to which the year of birth of petitioner (who is special attorney for Petitioners No, 2 & 3) is given as 1983. So at the time of decree impugned herein dated 15.09.1999, his age was 16 years and he attained majority in the year 2001 after two years and then his age was 18 years. So in view of Article 44 of the Limitation Act, 1908, the present petitioners were legally bound to file their petition under Section 12 (2), CPC within 3 years after attaining majority and in this respect relevant applicable provision of law to circumstances of said application is reproduced below:
44. By award who has attained majority, to set aside a transfer of property by his guardian.Three yearsWhen the ward attains majority
13. In this regard principle has been laid down in the judgment of this Court in PLD 1992 Peshawar 98 wherein it has been held that ward who has attained majority can file suit within 3 years of his attaining majority under Article 44 of Limitation whereas in the other judgment cited as 2003 M LD 568 it has been held that suit filed after the expiry of prescribed period of 3 years is liable to be dismissed being barred by time.
14. So in the light of above discussion, this Court is of the firm view that learned lower Court seized of the matter, had committed no illegality. The impugned judgment is well reasoned and is in accordance with law. So the grounds raised in the petition and arguments advanced by the learned counsel, are not worth consideration. Hence, this petition is dismissed in limine with costs..