SHAKEEL AHMAD, J.- This revision petition is directed against the judgment dated 7.5.2009 passed by the learned Senior Civil Judge, Peshawar whereby the application filed by the petitioner under section 12(2) CPC was dismissed.
2. The facts of this case are simple; that the respondent/decree-holder filed an application against the petitioner/judgment-debtor under section 20 of the Arbitration Act, 1940, on 28.7.1998. After service of summons, the respondent/judgment-debtor put his appearance joined the proceedings through a Special Government Pleader , whereafter , the respondent/decree-holder did not appear before the court and the petition was dismissed for non-prosecution on 29.7.2003. However , an application for restoration of the suit was filed, which was accepted vide order dated 21.10.2003, and finally , the Award was made as a rule of court vide judgment dated 16.12.2005, passed exparte, the petitioner moved an application under section 151 CPC with all enabling provisions of law for setting aside exparte judgment dated 16.12.2003, on the ground that after restorati on of the suit, the petitioner was neither intimated nor served, after hearing the arguments on the application for setting aside exparte judgment, vide order dated 19.6.2007, the learned Senior Civil Judge, Peshawar dismissed the application on merits, whereafter , the petitioner filed an application under section 12(2) CPC for setting aside the judgment and decree dated 16.12.2003, alleging that, the same was obtained by fraud. The respondent contested the petition by filing written reply , and after hearing the arguments on the application, filed under section 12(2) CPC, vide judgment dated 7.5.2009, the learned Senior Civil Judge, Peshawar dismissed the same.
3. Not contended with the order dated 7.5.2009, the petitioner filed an appeal before this court, however, the same was converted into revision petition vide order dated 27.8.2009.
4. It has been argued by the learned couns el for the petitioner that the impugned exparte judgment and decree dated 16.12.2003, whereby Award was made as a rule of court is illegal witho ut lawful authority and without jurisdiction; that after restoration of suit, the petitioner was not intimated about the date of hearing, therefore, the impugned order passed by the learned lower court is illegal, and the same is liable to be recalled.
5. As against that the learned counsel representing the respondents, vociferously argued that the petitioner having failed in proceedings for setting aside the exparte judgment and decree, moved the petition under section 12(2)
CPC with similar prayer claiming that the decree was fraudulently obtained, therefore, the subsequent application filed under section 12(2) CPC was neither maintainable in law nor on facts, therefore, it was rightly dismissed by the learned court below and prayed for dismissal of the same.
6. I have heard the arguments and perused the record with the valuable assistance of the learned counsel for the parties.
7. Perusal of the record reveals that on 11.6.2005, the petitioner moved an application under section 151 CPC read with other enabling provisions of law for setting aside the exparte judgment and decree dated 16.12.2003, passed by the learned Senior Civil Judge, Peshawar , which was dismissed on merits on 19.6.2007, whereafter , on 6.5.2008, the petitioner moved an application under section 12(2) CPC with similar prayer alleging that it was obtained by playing fraud. No doubt, where a suit has been decreed exparte, various remedies are available to the aggrieved person. Firstly , an application under Order IX Rule 30 CPC; secondly a review application under section 114 read with Order 47 CPC, thirdly , the appeal under section 96 CPC and lastly a proceedings to set aside the decree on the ground that it was obtaine d by fraud, mis representation and want of jurisdiction, etc under section 12(2) CPC. Here, the petitioner has exhausted the remedy by filing an application under Order IX Rule 39 CPC read with other enabling provisions provid ed under the law, therefore, on the same ground he cannot be permitted to re-agitate the same issue by means of a fresh petition under section 12(2) CPC, as the provision of section 12(2)
CPC are not intended to be a duplication of the proceedings provided for Order IX Rule 13 CPC. In this behalf, reference may be made on the case reported as Ghulam Sarwar vs. Muhammad Hassain and others (1987 SCMR- 1440 ), wherein it was held as:- --S.12(2) & O.IX R.13---Constitution of Pakistan (1973), Art.185(3)---Exparte decree, setting aside of --petitioner having failed in proceedings for setting aside exparte decree, moved application under S.12(2), CPC, with similar prayer claiming that decree was fraudulently obtained-- Dismissal of applicatio n challenged---Supreme Court affirmed impugned order holding that provision of S.12(2), C.P.C. were not intended to be a duplication of proceedings provided for in R.13, 0.IX, C.P .C. and refused leave to appeal.
8. In this respect, reliance can also be placed on the case reported as Mrs.Amna Bibi through General Attorney vs. Nasrullah and others (2000 SCMR-296), wherein it was held that the petitioner having exhausted remedy by filing an application under Order IX Rule 13 CPC which could not be permitted to re-agita te the same issue by means of fresh petition under section 12(2) C.P .C.
9. For what has been discussed above, this revision petition being bereft of merit is hereby dismissed.