MOHAMMAD SHERAZ KAYANI, J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following Relief has been implored by the petitioner:-- "It is therefore, very humbly prayed that by accepting the writ petition, an appropriate writ may be issued to the effect that the impugned order of respondent No.1 dated 23.04.2015 is bad in law, arbitrary, discriminate, fanciful and without lawful authority as liable to be set aside, which may very kindly be set aside with the direction that the application of the petitioner under section 12(2) of C.P.C. may very kindly be disposed after taking the evidence of the parties and on merit. Any other relief which this Hon'ble Court deems proper may also be granted to the petitioner."
2. Precise facts, leading to the filing of the instant writ petition are that the petitioner filed an application under section 12(2) of C.P.C. for setting aside the judgment and decree dated 19.05.2012, whereas, the real respondent filed an application under Order VII, rule 11 of C.P.C., instead of filing objections on this application. The petitioner filed objections on the application under Order VII, rule 11 and prayed for rejection of the same and respondent No.3, vide order dated 31.12.2013 rejected the application under Order VII, rule 11 of the C.P.C. The real respondent filed a revision petition before the Court of District Judge, Hattian Bala, respondent No.1, which has been accepted by the said respondent and the order of the trial Court dated 31.12.2013 had been set aside vide order dated 23.04.2015, hence, the petitioner has been constrained to file the above captioned writ petition before this Court.
3. The petition has been contested by the private/real respondents by filing written statement, wherein, they have refuted the claim of the petitioner and have stated that the petitioner has not come before the Court with clean hand and he has also an alternate remedy under Order IX, rule 13 of C.P.C. as against an ex parte decree, an application under Section 12(2) of C.P.C. was not competent and the petitioner had availed dual remedy. The other grounds of the petition have also been negated by the respondents.
4. Mr. Shahzad Shafi Awan, Advocate, the learned counsel for the petitioner, reiterated the grounds taken in the writ petition and submitted that the petitioner did not have the remedy under Order IX, rule 13 of the C.P.C., therefore, the application under Section 12(2) of C.P.C. was rightly filed and the learned trial Court, after hearing the parties had rightly rejected the application under Order VII rule 11 of the C.P.C. The learned counsel maintained that the learned Court below erred in law, while setting aside the order of the trial Court. The learned counsel, while referring the following case law, craved for acceptance of the petition, reversal of the impugned order and restoration of the order of the trial Court:-
(1) 2004 SCM R 843, (2) 2008 CLC 75, (3) 1998 CLC 1229, (4) 1993 M LD 1617, (5) 2008 SCM R 236 (6)
1996 SCM R 1528 and (7) 2006 SCM R 531.
5. Mr. Asad Chughtai, Advocate, the learned counsel for the respondents, while refuting the stance of the petitioner, contended that the petitioner should have filed an application under Order IX, rule 13 of C.P.C., instead of filing application under Section 12(2), hence, the application of the petitioner was incompetent, however, the learned trial Court fell in grave error while rejecting the application under Order VII, rule 11 of C.P.C. The learned counsel submitted that the learned Court below has rightly set aside the order of the trial Court. He supported the impugned order on all four corners and prayed for dismissal of the writ petition while referring to the following case law:
(1) 2005 SCMR 296 and (2) 2007 CLC 1865.
6. I have heard the learned counsel for the parties, perused the record available on file and considered the controversy with utmost care.
7. The main proposition in the instant case is, whether the learned Court below was competent to reject the application under Order VII, rule 11 of C.P.C. and whether, it was mandatory for the petitioner, herein, to avail the remedy provided under Order IX, rule 13 of C.P.C. instead of moving an application under Section 12(2), C.P.C., when it is alleged in the application that by practicing fraud upon the Court or through mis-representation a decree was obtained by a party, then the Court is quite competent to set the same at naught, irrespective of the fact, whether, the decree was passed ex parte or otherwise the grounds of setting aside an ex parte decree under Order IX, rule 13, C.P.C. are quite different than those mentioned in section 12(2) of C.P.C.. Under Order IX, rule 13 of C.P.C., the applicant/defendant has to show a sufficient cause for his absence from the Court and if the Court comes to the conclusion that the absence of the defendant, against whom, the decree was passed was not willful or deliberate, after service of summons or he was not duly served with the summons, then, the Court can set aside the ex parte decree but in the latter case, under section 12(2) of C.P.C., if it is found that a decree was passed by the Court without jurisdiction or some fraud has been practiced upon the Court or through misrepresentation, the questioned decree was obtained by a party, then, the Court shall set it aside by invoking the powers under the said section. So, the contention of the learned counsel for the respondents that the learned District Judge was correct in his approach by holding that the application should have been filed under Order IX, rule 13 of C.P.C. is misconceived. It is also to be noted here that even if, a fraud is committed between the parties, even then, the decree passed upon such fraud can be set at naught as laid down by the apex Court of Pakistan in 2004 SCM R 843 that it is not necessary that the fraud to obtain that decree should have been played on the Court which has passed the decree. If a party conceals some real facts from the other party or by misrepresentation gets the consent of the other party, then, the decree, result of such fraud or misrepresentation can also be set aside. Relevant portion of the judgment is reproduced hereunder: "A bare reading of this provision would show that it was not necessary that fraud in obtaining the decree should have been played on the Court which passed the decree but if a decree had been obtained through fraud between the parties inter se by concealment of true facts, the same could also be set aside. The learned Additional District Judge while passing the order in revision petition ignored the fact that the filing of suit by the respondents would have served no purpose, for, consequence of setting aside of the decree was that the suit in which the same was passed would be deemed to be pending and the question of validity, existence or otherwise of the Tamleek Nama was to be decided on merits inter se between the parties."
8. In another base titled Muhammad Qasim v. Abdul Karim and 8 others, 1993 M LD 1617 [Lahore] it was held as under: - "The argument has no force because the finality, if any, attached to the said decree was as regards remedy of appeal and making of an application for setting it aside under Order IX, rule 13, C.P.C. but the finality was not available as regards remedy of filing a suit which could be availed by Fazal Muhammad deceased within the period of limitation which was to start from the date of gaining the knowledge of the fraud allegedly committed by respondent No.1 . The said remedy after coming into force of Ordinance No.X of 1980 through which a remedy under Section 12(2), C.P.C. was provided, was no longer available as by virtue of the same the suit was not maintainable, as such, the finality attached to the decree as argued by the learned counsel for respondent was not available as regards remedy under Section 12(2), C.P.C. was concerned which was in substitution of remedy of suit."
9. In the same judgment, in para 10 of the report, the learned Judge, in the Lahore High Court, has observed as under:-- "10. The application under section 12(2), C.P.C. was maintainable, therefore, on the erroneous assumption that the same was not maintainable the learned Additional District Judge shall be deemed to have declined to exercise jurisdiction vested in it under the law to decide the revision petition on merits, therefore, the order impugned in this writ petition dated 07.10.1991 suffers from Jurisdictional defect, as such not maintainable."
10. It has been alleged in the application that two cross cases were pending in the trial Court, between the parties and during the pendency of the suits, the parties reached at a compromise that both the parties shall get their respective suits dismissed and due to that understanding, the applicant and proforma respondents did not appear before the Court and their suit was dismissed and ex parte proceedings were ordered in the suit, in which, later on, the questioned decree was passed, thus, according to the version of the applicant/petitioner, fraudulently, the respondents obtained the questioned decree. Obviously, alleged facts are questions of facts which can be resolved after recording evidence, therefore, the approach of the trial Court was correct that after recording evidence, the application could be disposed of.
11. What emerges from the above discussion is that the instant writ petition is accepted, the order passed by the learned District Judge, Hattian Bala dated 23.04.2015 is hereby set aside. The application filed on behalf of the petitioner, herein before the trial Court shall be deemed pending.
The learned trial Court is directed to decide the application on merits, within a reasonable time.