MOHAMMAD IBRAHIM KHAN, J.----By introducing her suit Mst. Jabin wife of Ibrahim Khan in collision with Buzarg Khan her father-in-law and another Qazi Mehboob for obtaining declaratory decree on the strength of deed Hiba-bil-Hiwaz dated 16.03.1989, it pertains to a shop situated in new Bazar near Dream Land Hotel Chitral. There is another specific prayer for obtaining permanent injunction that being the owner of the said premises, Buzarg Khan father-in-law has no right to collect rent of the said shop and in alternative there is prayer for recovery of Rs,9,12,000/- recoverable from father-in-law Buzarg Khan as he has obtained the rent with mala fide intention and committed fraud with her.
2. This claim was however contested, but on 01.07.2013 the parties through a compromise deed Ex.
PB, amongst the husband of the Plaintiff (now Respondent No,1, Mst. Jabin) by the name of Ibrahim Khan who is son of the Petitioner Buzarg Khan offered his statement to be recorded to the effect that the parties have entered into compromise and requested that the suit be dismissed as withdrawn. The application for withdrawal was exhibited as Ex.PA, the compromise deed as Ex.PB and the special power of attorney of the said Ibrahim Khan husband of the Plaintiff (herein Respondent No,1, Mst. Jabin) is Ex. PC. Even identification of the Plaintiff/Respondent No,1, Mst. Jabin's husband was confirmed through CNIC exhibited as Ex. PD. It was followed by a Order 9 dated 01.07.2013, the learned Civil Judge/Judicial Magistrate Chitral while referring to the compromise in between the parties and in view of the statement of special attorney of the Plaintiff (herein Respondent No.1, Mst. Jabin) allowed the suit dismissed as withdrawn. The statement of the special attorney of the Plaintiff (herein Respondent No.1 Mst. Jabin) by the name of Ibrahim Khan is reproduced as under:- "Statement of plaintiff's special attorney namely Ibrahim Khan S/O Buzurg RIO Shalidan Tehsil & District Chitral.
Stated on oath that compromise has been effected between the parties, therefore, it is requested that the instant suit be dismissed as withdrawn. In this regard application for withdrawal is Ex. PA, compromise deed is Ex.PB. Special power of attorney is Ex. PC while copy of my identifier CNIC is Ex. PD on case file."
RO&AC 01.07.2013 Civil Judge/JM/L Q-1 Chitral Likely order of the learned Civil Judge/Judicial Magistrate Chital in support of the compromise is reproduced below for ready reference:- "Order-9 01.07.2013 : Plaintiff through husband/special attorney namely Ibrahim Khan son of Buzurg present Defendant No.1 also present. Special power of attorney submitted by the Plaintiff's attorney, be placed on file, meanwhile an application for withdrawal of the suit on the basis of compromise was also submitted by the plaintiff's special attorney. In this regard, statement of the plaintiff's special attorney recorded on oath wherein he confirmed the factum of compromise and his request for dismissal of the instant suit as withdrawn.
In view of the plaintiff's application for withdrawal coupled with statement of the special attorney for the plaintiff, the instant suit stands dismissed as withdrawn. Parties are left to bear their own costs.
File be consigned to the record room of Honorable District and Sessions Judge Chitral after its attorney completion and compilation.
Civil Judge/JM/I.Q-1 Chitral
3. Despite the fact that the suit was dismissed as withdrawn, the said father-in-law Buzarg Khan the Defendant (herein the Petitioner) preferred an application under section 12 (2) of the Civil Procedure Code to declare the order dated 01.07.2013 to have been obtained by his son Ibrahim Khan in favour of the Plaintiff (herein the Respondent No.1) Mst. Jabin on the basis of committal of fraud in view of the compromise deed/ agreement Ex. PB. This application under section 12(2), C.P.C was hotly contested by Mst. Jabin (herein the Respondent No.1) on various legal and factual grounds. The learned Civil Court on the basis of averments taken in the said pleadings framed the following issues:-
1. Whether Petitioner has got a cause of action? (OPP)
2. Whether the petition is within time? (OPP)
3. Whether the judgment and Decree dated 01.07.2013 is based on fraud and misrepresentation which is liable to be set aside? (OPP)
4. Whether the Petitioner is entitled to the relief as prayed for? (OPP)
5. Relief.
4. The parties then led their evidence in the petition under section 12 (2) of the C.P.C. The learned Civil Judge-1 Chitral designated himself at the top of judgment "BEFORE THE COURT OF.........CIVIL JUDGE-I PESHAWAR" and at the foot of the judgment then realized to be Civil Judge Chitral signed the judgment dated 15.08.2016. Concluding Para of the said judgment is reproduced as under:- "Relief 12. For what has been discussed above, relief is extended in favour of Petitioner as prayed in the instant application under adjudication. File be consigned to Record Room after necessary completion and compilation within its prescribed time."
5. Next off, the Respondent No.1 Mst. Jabin filed her civil revision bearing No. 07/C.R of 2016 titled as "Mst. Jabin v. Buzarg Khan and another". which came up for hearing before the learned District 'Judge/Zila Qazi Chitral and the revision petition was accepted. The impugned judgment of the learned Civil Judge Chitral was set aside with no order as to costs.
6. Here this is a Writ Petition bearing No. 531-M of 2017, whereby the facts and grounds being taken the following prayer has been set in:-- "It is therefore, humbly prayed that on acceptance of this writ petition, the impugned order of the learned revisional Court/respondent No.3 dated 05.06.2017 may kindly be set aside and the judgment and order of the learned Civil Judge-I Chitral dated 15.08.2016 may kindly be restored.
Any other remedy coupled with cost, which is efficacious and appropriate in peculiar circumstances of the case, may please be granted, though not specifically prayed for."
7. Having heard arguments of learned counsel for the parties, record with their valuable assistance gone through.
8. It is extremely mirthful that at all the stages of the presentation of the application under section 12 (2) of the Civil Procedure Code either by father-in-law Buzarg Khan against his daughter-in-law Mst. Jabin calling for the setting aside of the order/judgment dated 01.07.2013 where specifically on the basis of factum of compromise an application for withdrawal of the suit was submitted and the special attorney Ibrahim Khan by recording his statement on behalf of his wife Mst. Jabin for withdrawal of the suit and the suit was accordingly dismissed as withdrawn. It is beyond understanding as to why when suit has been dismissed as withdrawn an application under section 12(2), C.P.C. was preferred before the learned Civil Court. It is again keenly observed that the learned District Judge/Zila Qazi Chitral without realizing that on the A basis of reasons being given the revision was accepted, the impugned judgment of the learned Civil Court delivered upon an application under section 12(2), C.P.C. when was set aside without recourse to that in view of the suit being dismissed as withdrawn even then accepted the revision which was not warranted under the law.
9. According to section 12 (2) of the Civil Procedure Code which reads:-- (1)
(2) Where a person challenges the validity of a judgment, decree or order of the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
Here specifically it is open to any person having any interest under the cause of action to challenge the validity of a judgment, decree or order obtained on the plea of fraud, misrepresentation or want of jurisdiction and has to move by making an application to the Court which passed the final judgment, Decree or order and not by a separate suit. The judgment/order terms are understandable that being passed by the learned Civil Judge on the basis of statement of Ibrahim Khan special attorney of the Respondent No.1 Mst. Jabin who is her husband and had requested through filing of an application for withdrawal of the suit and having no interest left on the basis of compromise had further prayed for dismissal of the suit to be termed as even withdrawn. Thus, when the order dated 01.07.2013 has already been carried out for withdrawal of the suit and dismissed accordingly. There is no decree left for execution. Hence, the basic application under section 12(2) of the Civil Procedure Code preferred by father-in-Law Buzarg Khan against his daughter-in-law Mst. Jabin Respondent No.1 is of no legal effect and unwarranted for the cause of action being set therein. Absolutely, there is no decree executable and if there is any execution petition preferred on the basis of the order dated 01.07.2013 in the civil suit of Mst. Jabin against her father-in-law Buzarg Khan the same shall be filed without further proceedings/execution.
10. In such terms this writ petition is disposed accordingly.