This judgment will dispose of F. A. O. Nos. 250 and 251 of 1980 and F. A. O. No. 4 of 1981 as these appeals raise common. Questions of law and fact and arise out of somewhat similar circumstances between the parties. Before dealing with the various points involved in the present appeals the facts giving rise to each appeal may be briefly stated: F. A. Os. Nos. 250 and 251 of 1980 have been filed by Munir Ahmad Khan.
F. A. O. No. 250 of 1980
2. This appeal concerns Suit No. 1933 decided on 27-7-1980 by Mr. Pervez Ahmad, Additional Administrative Civil Judge, Faisalabad. This suit had been filed by Munir AhinA Khan, the present appellant and Sami Ullah Khan, Amir Ullah Khan, Kausar Ullah Khan sons of Mst. Sarnia Sultana daughter and Mst. Shafqat Sultana, widow of Nasrullah Khan (now respondents Nos. 1 to 6) and Collector, Toba Tek Singh were arrayed as defendants. This suit was for declaration to the effect that the present appellant had become owner in possession of the land measuring 2149 marlas 82 sq. Ft. And that the respondents Nos. 1 to 5 had no right whatsoever to interfere in the peaceful enjoyment of the said land by the appellant. A decree for perpetual injunction was also prayed by way of consequential relief against respondents Nos.1 to 5 restraining them from interfering with the appellant's ownership and possession of the land in dispute. It was further prayed that the Collector being defendant No. 6 in the suit be directed to sanction necessary mutations and that the revenue record be accordingly corrected. According to the appellant the respondents Nos. 1 to 5 filed a writ--ten statement before the learned Court aforementioned through their counsel Mr. Amir Ali Malik, Advocate who has now been impleaded as respondent No. 7 conceding the case of the appellant on which the decree was passed with--out any trial on 27-7-1980. The Collector who had been shown as defendant No. 6 had been proceeded ex parte. It is further asserted in this appeal that respondents Nos. 1 to 6 had also filed a suit against the present appellant and respondents Nos. 7 and 8 for a declaration to the effect that the judgment and decree dated 27-7- 1980 had been obtained by practising fraud and was of no legal effect. The learned Senior Civil Judge, Faisalabad dismissed the suit on account of the insertion of subsection (2) of section 12 of the Civil Procedure Code and a direction was made that the appellant should approach the same Court who passed the judgment and decree as per the aforesaid provisions, Accordingly the respondents Nos. I to 5 through one Zafarullah Khan, their attorney, and Zafarullah Khan in his individual capacity as well filed a petition under the amended provisions of subsection (2) of section 12, C. P. C. On 9-8-1980 in which Munir Ahmad Khan, the present appellant, Mr. Amir Ali Malik; Advocate, Toba Tek Singh and Province of Punjab through the Collector were impleaded as the respondents Nos. 1, 2 and 3 respectively. During the proceedings before the learned Additional Administrative Civil Judge, Faisalabad the appellant filed an application for the transfer of the case on the ground that the learned Judge aforementioned was admittedly a near relation of respondents No.1 to 6. The learned District Judge adjourned the petition for transfer to 25-9-1980 but according to the appellants it bad actually been adjourned to 25-10-1980. It is asserted in the memo--randum of the appeal that the application filed under subsection (2) of section 12 was fixed for hearing on 22-9-1980. The appellant made an application on the same date for the grant of adjournment of the case to evade the result of the transfer application but this was refused. On 22-9-1980 the appellant who was respondent No. 1, was proceeded under Order VIII, rule -10, C. P. C.
The learned Additional Administrative Civil Judge recorded the statements of Mr. Amir Ali Malik, Advocate (respondent No. 7), and Zafarullah Khan (respondent No. 6) and accepted the aforesaid application filed under subsection (2) of section 12 in the manner already stated above. This order has been challenged in this F. A. O. No. 25.0 of 1980.
F. A. O. No. 251 of 1980 and F. A. O. No. 4 of 1981
3. This appeal relates to Suit No. 713 which was decided by Mr. Pervez Ahmad, Additional Administrative Civil Judge, Faisalabad on 1-4-1980. This suit had been filed by Habib Abm3d Khan appellant, in F. A. O. No. 9 of 1981 and respondent No. 6 in F. A. O. No. 251 of 1980 and in this suit Samiullah Khan (respondent No. 1), Munir Ahmad Khan, the present appellant and the Collector.
Toba Tek Singh were impleaded as defendants. This suit was also filed for a declaration in respect of land measuring 26 kanals and 8 marlas as the respondent No. 1 had failed to execute a deed of conveyance in his favour. According to the appellant in this case Malik Muhammad Saleem, Advocate, Faisalabad (respondent No. 8) appeared as a counsel for Munir Ahmad Khan, the present appellant and Samiullah Khan (respondent No. 1) and admitted the claim of Habib Ahmad Khan (respondent No. 6). The trial Court passed a judgment and decree on the basis of the admission contained in the written statement on 10-4-1980. In order to set aside the decree no separate suit was filed as has been noted in connection with F. A. O. No. 250 of 1980.Ut directly an application under subsection (2) of section 12, C. P. C. Was made by Sami Ullah Khan and his two brothers, sister and widow of Nasarullah Khan noted above and are now respondents Nos. 1 to 5. In this application Habib Ahmad Khan (now respondent No. 6), Munir Ahmad Khan, the appellant, Hamid Ali Khan Advocate, Malik Muhammad Saleem, Munir Ahmad Khan Province of Punjab through Collector were impleaded as respondents. Afore mentioned Hamid Ali Khan and others are now respondents Nos. 7 to 10 in this appeal. The allegations of fraud contained in both the applications under subsection (2) of section 12 were almost identical. On the basis of an application for transfer having been made by the appellant a request for an adjournment was made which was refused. Munir Ahmad Khan appellant and respondent No. 7. Hamid Ali Khan were proceeded under Order VIII, rule 10, C. P. C. The learned Administrative Civil Judge, Faisalabad recorded the statements of Sami Ullah Khan (respondent No. 1), Habib Ahmad Khan (respondent No. 6) and Malik Muhammad Saleem, Advocate, Faisalabad (respondent No. 8) and set aside the decree vide order dated 22-9-1980 which has been challenged in this appeal, being F. A. O. No. 251 of 1980.
4. It would not be out of place to mention certain additional facts which resulted in the filing of the two suits in which the applications under subsection (2) of section 12, C. P. C. Had to be made on account of the consenting written statements filed in the two suits as already stated above. The respondents Nos. 1 to 5 were joint owners of land measuring 139 kanals and 15 marlas being 2795 shares in a joint Khata of 4073 shares. The remaining 1278 shares belonged to Nasir Ahmad son of Sain Muhammad and the disputed land is situate in Chak No. 365/J. B., Katcha Gojra, Tehsil Toba Tek Singh, District Faisalabad. Sami Ullah Khan (respondent No. 1) on his own behalf as attorney for respondents Nos. 2 to 5 is said to have entered into an agreement with Munjr Ahmad Khan appellant in both these appeals on 29-11-1979. This agreement stipulated the disposal of the disputed land in the shape of residential plots. According to the appellant, respondents Nos. I to 5 had agreed to purchase the land for a sum of Rs.44 lacs and the payment was to be made in phases. The appellant claims that the possession had been delivered to him in order to enable him to sell the same to respective buyers against payment and the respondent No. 1 had agreed to execute the sale deeds in favour of the prospective purchasers. It is also asserted that the agreement dated 29-11-1979 was modified on 12-12-1979 for which the appellant had to pay a sum of Rs.5 lacs to Zafar Ullah Khan. The appellant is said to have started selling the land and in pursuance to the said agreement payments were made to respondent No. 1 who is said to have refused to execute the sale deeds and confer title on the prospective purchasers which led to dispute between the parties. Zafar Ullah Khan and respondent No: 1 have also stated to have filed a Writ Petition No. 8855 of 1980 for the registration of the case against the appellant and others and a direction was issued in this behalf by this Court on 24-8-1980. F. I. R. No. 370 of 1980 was registered on 26-8-1980 in pursuance thereto, I do not think that any further facts are necessary to dispose of the legal contentions raised in the present appeals.
5. These appeals were admitted for regular bearing for the interpreta--tion of subsection (2) of section 12, C. P. C. And to determine the scope of inquiry, which is to be made in such applications.
The learned counsel appearing for the respondents has raised a preliminary objection as to the maintainability of the appeals. The precise objection is that the order passed under subsection (2) of section 12, C. P. C. Does not amount to a decree nor has been made appealable under section 104 read with Order XLIII, rule 1 of the Civil Procedure Code. In order to appreciate the submissions of the learned counsel for the respondents it may be pointed out that subsection (2) of section 12 was inserted by Ordinance X of 1980, dated 26-3-1980 and for the sake of convenience is reproduced below: "(2) Where a person challenges the validity of a judgment, decree or order on 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."
After the insertion of subsection (2) of section 12 neither the definition of the decree as given in Order 11, rule 2, C. P. C. Was amended nor the adjudication made under the aforesaid subsection included in the appealable orders as given in section 104 with the result that neither a regular appeal would be maintainable nor any order passed under the aforesaid section shall be appealable as an order. Consequently the only remedy available to a person aggrieved by an order passed under subsection (2) of section 12, 11 C. P. C. Would be to file a revision under section 115, C. P. C. The learned counsel for the appellant could not controvert the objection and requested that the appeals be converted into revisions. The High Court has always power to convert an appeal into a revision for which no authority needs to be cited. The two appeals, i.e. F. A. Os. Nos.
250 and 251 of 1980 are converted into the civil revisions, and are to be treated as such. The appellant) in both the appeals shall henceforth be termed as petitioner.
6. The learned counsel for the petitioners has raised the following contentions
(i) The provisions of subsection (2) of section 12, C. P. C. Are a sub--stitute for a regular suit and as such the decree already passed could not be set aside without an elaborate inquiry ; and
(ii) The Court has illegally proceeded under Order VIII, rule 10, C. P. C. And even if the decree was to be set aside the petitioner ought to have been permitted to cross-examine the witnesses.
(i.e) Habib Ahmad Khan petitioner in F. A. O. No. 4 of 1981 contended that he bad filed a reply and was examined in Court in which he raised substantial questions of law and fact which could not be dealt with or determined except by framing of issues even if it may be assumed that the Court was justified to proceed under Order VIII, rule 11, C. P. C. Against Munir Ahmad Khan ;
(iv) That the learned counsel for the petitioners representing the suit was deliberately impleaded, as a party and there were allegations and threats against the counsel in the petition on bass of which the to reply as well as the statement was procured in their favour by the respondents. The proceedings as such were mala fide. And the judg--ment could not be set aside on that score as well in the absence of any evidence on the side of the petitioners.
7. The learned" counsel for the respondents, on the other hand has argued that the provisions of subsection (2) of section 12 have been introduced solely with a view .To avoid the intricacies of a civil suit and to dispose of the applications made there under in a summary manner. It is further submitted on behalf of the respondents that substantial justice having been done the order in question cannot be interfered with in the exercise of revisional jurisdiction. The contentions of the respective parties may be now adverted to in detail.
8. Subsection (2) was added to original section 12 of the Civil Procedure Code by Ordinance X of 1980, as already quoted above. The original section 12 of the Civil Procedure Code was to the following effect :- "12.. Where a plaintiff is precluded of rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies."
The unamended section 12, C. P. C. Bars institution of a fresh suit in respect of any ,particular cause of action and had reference for example to Order II, rule 2, Order IX, rule 9, Order XXII, rule 9 and Order XXIII rule 1, C. P. C. It is an accepted proposition that before the introduction of subsection (2) of section 12 a civil suit in the Court of general jurisdiction was competent to challenge a decree obtained by fraud with which we are concerned in these appeals on the well-known principle that fraud vitiated all proceedings and if proved render decree null and void. In a case reported as Malik Umar Hayar Tiwana v. Malakani Shehzadi Tiwani (PLD 1978 Lah.1255) it was held that a decree based on an award procured by fraud could be challenged in a civil suit irrespective of the provisions contained in section 17 and section 32 of the Arbitration Act. In this connection distinction may be made in the fraud practised on the Court in obtaining a decree and the fraud which may be the subject-matter of the suit. In case fraud related to the trans-- action which was the subject- matter of the suit, that would be covered by the matter-in-issue of the suit and the remedy available for the defendant was to set it right in appeal if it was decreed against him. The fraud on the basis of which a decree could be set aside by a separate suit was when the decree of the trial Court had been obtained fraudulently and collusively. Formerly a difference was yet maintained between fraud practised on the Court and the fraud and the collusion inter se the parties. In the former case the order or decree that may be obtained was treated as void but in the latter case where fraud is alleged inter se the parties the remedy was to have the decree set aside through a suit. Reliance in this behalf may be placed on Allah Yar v.Muhammad Zafar (1979 CLC 725). It -was further held in this case that a decree passed on the basis of the statement made by the attorney having no authority under the power of attorney was not void but incorrect and the remedy against the wrong order was to prefer an appeal within the period of limitation. The position of law as obtaining before the amendment in respect of the consent was laid down in a judgment reported as Muhammad Bibi v. Abdul Ghanf (PLD 1973 Kar. 444). It was held in this case that a consent order embodying agreement between the parties which was attacked on: the ground of fraud played upon the party, the consent order could not be set aside on a motion under section 151, C. P. C. Nor by invoking Order XLVII, rule 10, C. P. C. But by filing a separate suit. In Shaista Gul v.
Raza Khan (PLD 1977 Pesh. 74) it was observed that it was only positive fraud actually misleading the Court which could alone vitiate a decree. Reliance may also made to a D. B. Court reported as Grindlays Band Ltd v. Murree-Brewery Company(PLD 1954 Lab. 745) and relevant portion is quoted below.
"Since fraud vitiates all proceedings the lower Court in a suit properly constituted is certainly competent to set aside. a judgment of a higher Tribunal if it be proved that such judgment was obtained by fraud, it must a fortiori follow that a Judge of this Court sitting singly has jurisdiction to pass such order provided the issue whether the judgment was obtained by fraud properly comes up before him."
Reliance may also be placed on a judgment of the Supreme Court report--ed as Mst. Bano v. Mian M. Sayeed (1969 SCMR 299). From the authorities discussed above it would be abundantly clear that the validity of a decree obtained by practising fraud could be challenged in a civil suit and in case of fraud practised on the Court in obtaining the decree an application would lie to the same Court. It appears that in order to avoid the filing of the separate suit for challenging a decree obtained on the basis of fraud, misrepresentation or one of jurisdic--tion the remedy now provided is by way of making of an application under subsection (2) instead of filing a separate suit. After the insertion of subsection (2) to section 12 there would now be no distinction as to the cases in which the decree has been obtained by practising fraud on the Court or the cases of fraud inter se the parties in obtaining the decree except where the question of fraud was determined in between the parties relating to the subject-matter of the suit and had been finally adjudicated to which the only remedy would be to file an appeal or revision as the case may be. This may be explained by way of an illustration. In case a defendant obtains a plot of land from the plaintiff by misrepresentation and fraud and the plaintiff files a suit to get the transaction annulled on that basis which is decided in his favour, such a judgment and decree would not be liable to be challenged under subsection (2) of section 12 of the Civil Procedure Code. In nut--shell the type of fraud contemplated under subsection (2) of section 12 is the one which is practised on Court or inter se the parties which makes the decree or order void. Reliance may be placed on Kunjabehari Chakraborty v. Krishnadhone Majumdar (AIR 1940 Cal. 489) in which the circumstances under which a decree could be re-opened on the ground of fraud as a new cause of action or the perjured evidence on the basis of which a decree may be passed were considered. Useful observations at page 492 may be quoted below :- "it is now well settled that a decree cannot be reopened on the ground that it has been obtained by perjured evidence. In Muhammad Golab v. Muhammad Sulaiman, (1814) 21 Cal. 612 Sir Comer Petheram, C. J. Laid down that proposition and poined out that if the law was otherwise there would be no finality to litigation. In Lakshmi Charan v. Nur Ali (1911) 38 Cal 916 however the observation of Petheram C. J. In Muhammad Golab's case was discarded on the ground that it was obiter, the learned Judges proceeding further to observe that in the light of later decisions of the English Courts it cannot be said that the law was laid down correctly by Petheram C. J. The reasoning adopted and the English decisions relied on were subjected to critical analysis in Mosuful Hay v.
Surendra Nath Roy (1912) 16 C W N 1002 and Petheram C. J.'s dictum was followed. The later cases of this Court have all along accepted the dictum of Petheram C. J. As sound and have either criticized or distinguished Lakshmi Charan's case. A useful review of the case-law is given in Mukhtamala Dasi v. Rant Chandar 31 C W N 258. The proposition is well settled that a decree can be reopened by a new action when the Court passing it had been misled by fraud, but it cannot be reopened when the Court is simply mistaken ; when the decree was passed by relying upon perjured evidence, it cannot be said that the Court was so misled. (Kerr on Fraud and Mistake p. 425, Edn.
6. To us it seems that to sustain an action for setting aside a decree the fraud alleged and proved must be actual positive fraud, a meditated and-' intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case and obtaining that decree by that contrivance."
Adverting to the facts of the present case it would be evident that it was stated in the application that the decree has been obtained by practising fraud on Court inasmuch as a counsel had been produced who had never been engaged and the consent decree had been obtained by fraud and misrepresen--tation. Such an application was, therefore, competent under the newly added subsection (2) of section 12 of the Civil Procedure Code.
9. The next question which requires determination is the nature of inquiry which is to be made on such an application having been made. According to the learned counsel for the petitioner subsection (2) of section 12 is so worded as to give a clear indication that a person who challenged the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction was to seek his "remedy" by making an application to the Court which passed the initial judgment, decree or order and "not by a separate suit". It was further submitted that since making of the application under subsection (2) was substitution for suit therefore, the possibilities of summary trial were excluded. The contention on the face of it appears to be correct. It would be noted that wherever in the Civil Procedure Code an application is to be disposed of by a summary inquiry, the matter is left to the satisfaction of the Court and reference may be made to the applications made under Order IX, rule 13, Order 1X, rule 9, Order XLI, rule 17, Order XLI, rule 19 of the Code of Civil Procedure. However, where a substantial inquiry is to be made under the Civil Procedure Code the matter is not left to the satisfaction of the Court alone and existence of the facts on which the: exercise of the jurisdiction depends must be proved. The Court under the circumstances of the case was under a legal obligation to hold an inquiry into the allegations of the respondents that they had never engaged a counsel through whom the written statement had been filed. The counsel through whom the written statements in the two suits had been filed could be confront--ed with their signatures on the power-of-attorney if an elaborate inquiry had been made in this behalf.
10. In F. A. O. No. 250 of 1980, Amir Ali Malik submitted his written reply alongwith his affidavit wherein he contended that he was given a signed power of attorney by Mr. Hamid Ali Advocate, and on instructions of Mr. Habib Ali Advocate, one person personating himself to be Zafarullah, he filed the written statement in the form of admission in the Court and judgment and decree was passed on 27-7-1980 in pursuance thereof. Statements of Amir Ali, Advocate and Zafarullah applicant were recorded but the was appellant not given any opportunity to cross-examine the witnesses.
11. In F. A. O. No. 251 Malik Muhammad Saleem, Advocate relied upon his written reply to the application alongwith his affidavit and contended that Mr. Hamid Ali, Advocate, presented him a blank vakalatnama which was signed by one Sami Ullah Khan and Munir Ahmad signed in his presence and according to the instructions of Mr. Hamid Ali, Advocate he made the statement in the form of admission and a judgment and decree was passed. During the proceedings statement of Sami Ullah Khan, Habib Ahmad Khan and Malik Saleem, Advocate was recorded but no opportunity of cross---examination was afforded.
12. To term "fraud" as used in subsection (2) of section 12 is to b interpreted--in liberal sense as included in improper means resorted to prevent the parties to represent their case. Reference may be made in this behalf on Haider Raza v. Imam Ali (PLD 1961 Lab. 800). The learned counsel for the respondent has cited several judgments to show that where substantial justice has been done this Court has no jurisdiction to interfere in the exercise of revisional jurisdiction. The contention of the respondents is based on the submission that the application to set aside a decree on the basis of fraud is analogous to making a petition for setting aside ex parte decree under Order IX, rule 13, C.
P. C. And the superior Courts have failed to interfere in the exercise of discretion by the Courts below. This contention cannot be accepted on the ground that fraud as contemplated in subsection (2) of section 12 is to be positively proved in order to set aside the judgment or decree duly passed by a Court of competent jurisdiction. In Hari Singh v. Khan Moln-ud--Din Khan and others (AIR 1944 Lah. 397), it was held that where the order of the trial Court setting aside the ex parte decree and permitting the parties to fight out case on its merits on payment of costs was eminently a just order the power of revision cannot be exercised to reverse that order. As already pointed out the cases falling under Order IX, rule 13, C. P. C. Stand on a different footing as in such cases the Court has to be satisfied whether the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. The learned counsel has also relied on Mst. Ghulam Sakina v. Karim Bakhsh. Etc. (PLD 1970 Lah. 412) which was also a case under Order IX, rule 8, C. P. C. It was observed in this case that where the reasons given by the lower Court in support of its decision were wrong, but the decision otherwise was correct, the same could not be interfered in the exercise of the revisional jurisdiction. Another case reported as Zafarullah Haq v.
Warts lqbal (NLR 1979 Civil Lah, 562) relied by the learned counsel was a case of discretion exercised by the learned trial Court in setting aside the ex parte decree was not interfered on the ground that the substantial justice has been done between the parties.
13. According to the appellant, proceedings under Order VIII, rule 10 C. P. C. Were not justified.
However, no material has been placed on record by which it could be substantiated. However, the point for con--sideration in these revisions is that even if the proceedings were taken under Order VIII, rule 10, C. P. C. The appellant could be deprived of the right to cross-examine the deponents and the witnesses. The appellant had taken several adjournments for filing of the written reply, As regards the applicability of Order VIII. Rule 10, C. P. C. Reliance may be placed on a recent judg-- ment of this Court reported as Mst. Bilqees Begum v. Syed All Turab etc. (1980 CLC 930) in which it was observed that unless there had been a specifically requirements as contemplated by Order VIII, rule 10, C. P. C. For filing a statement the Court could not pronounce judgment. It was further observed that even otherwise Order VIII, rule 10 does not contemplate a pronouncement of a judgment as the only measure for it leaves the Court with were margin of discretion to make any other order it thinks fit and would mean the ouster of the defendant from the proceedings. There is no reason why the Court did not allow the parties to cross-examine the witnesses and based its judgment on the statements of the Advocates who were not party to the original proceedings and had been impleaded as respondents.
14. The contentions raised by Habib Ahmad Khan petitioner have also much force. In his written reply he has raised the following objec--tions :-- No issues were framed by the learned trial Court on these objections nor any finding was given.
Undeleted paragraph 14 of the petition Con--taining allegations against the Presiding Officer of the Court was to the following effect: "14. That ordinarily under section 12 (2) of the C. P. C. Application should have been filed in the Court where the impugned judgment and decree has been passed but as a criminal case pertaining to the suit and impugned judgment and decree has been ordered to be registered by Mr. Justice Gulbaz Khan honourable Judge of the Lahore High Court, Lahore and it has been so registered at Police Station, Kotwali, Faisalabad and there are allegations against Mr. Pervez Ahmad, Additional Administrative Civil Judge, Faisalabad who passed the impugned judgment and decree, therefore, this application is presented in this Honble Court.
By making a statement deleting the above paragraph a reasonable apprehension would be caused in the mind of the petitioner that this has been done solely with a view to confer jurisdiction on the Court particularly in the circumstances when a transfer application had been filed before the learned District Judge. Even otherwise the manner in which the entire proceedings have been taken up does not inspire confidence.
15. The next contention raised by the learned counsel for the respon--dents that after setting aside the decree the provisions could not be revived is not legally sustained. Even before the insertion of subsection (2) of section 12 the law was that after an ex parse decree had been set aside in a subsequent suit the original suit would revive. Reference in this behalf may be made to Nirsan Singh v. Kishuni Singh (AIR 1931 Pat. 204).
The upshot of the entire discussion is that the Court was not justified in the circumstances of the case to pass an order under subsection (2) of section 12, C. P. C. Without an inquiry and allowing the petitioner to cross---examine the witnesses examined by the Court. The proceedings in both the cases were conducted with a material irregularity and as such can be interfered in the exercise of the revisional jurisdiction. The order of the learned Additional Administrative Civil Judge, Faisalabad dated 27-7-1980 in both the cases are set aside and case is remitted for fresh decision.
The Court is directed to determine the question of fraud as alleged by the res--pondents after allowing both the parties to lead evidence and opportunity of cross-examination. As the allegations contained in the application made under subsection (2) of section 12 relate to fraud, it would be in the interest of justice to expedite the disposal of the application. The learned trial Court shall now dispose of the applications within three months and no unnecessary adjournments shall be granted to the parties.
12. Since the question of interpretation of subsection (2) of section 12, C. P. C. Has come for the first time before this Court and was not prima facie free from difficulty, there will be no order as to costs.