SHAKEEL AHMAD, J. This appeal has been filed by Sain Muhammad and four (04) others, against the judgment and decree dated 19.02.2014 passed by the learned District Judge, Abbottabad, whereby he accepted the application under Section 12 (2) CPC filed by the respondent No.1 and set-aside the judgment and decree dated 30.04.1983 passed by the learned Civil Judge Abbottabad in suit No. 374/1 instituted on 10.11.1980 decided on 30.04.1983.
2. The facts, relevant for disposal of this appeal, are that appellant / plaintif f Sain Muhammad and five (05) others, predecessor-in-interest of rest of the appellants (hereinafter referred to as the appellants) instituted a representative suit for declaration-cum-permanent injunction against respondent / defendant Younas and ten (10) others, predecessor-in-interest of the respondents No.2 to 56 (hereinafter referred to as the respondents) in respect of a piece of land measuring 22 Kanals situated at Mauza Kotwal, Tehsil Havelian District Abbottabad to the effect that the land in question is Shamilat-e-Deh and the appellants, being inhabitants of Hundi Deh Kotwal, are its real owners in possession; whereas the entries, made in the revenue record in the name of the defendants/respondents are illegal, unlaw ful and ineffective upon their rights. The respondents/ defendants were put on notice, who duly contested the suit by filing their written statements; and out of divergent pleadings of the parties, the learned trial court framed as many as thirteen (13) issues including relief, where after the parties were directed to adduce their evidence, who, accordingly produced their respective witnesses and after recording pro and contra evidence and hearing learned counsel for the parties, the learned trial court decreed the suit of the appellants as prayed for vide judgment and decree dated 30.04.1983. Not contented with the same, the defendants in suit No.374/1 Noor Hussain & 04 others went in appeal and the learned Additional District Judge Abbottabad vide judgment dated 15.07.1984 though maintained the judgment of the learned trial court but with slight modification declined prayer for possession of the suit land. Dissatisfied with the judgment of the learned appeal court the respondent Noor Muhammad s/o Muhammad Hayat filed civil revision bearing No. 296/84 before this court which was dismissed vide judgment dated 04.10.1989, where after the respondent No.1, Muhammad Aslam, filed C.M.No.239/2004 in C.R.No.296/1984 before this court challenging therein the impugned judgment and decree dated 04.10.1989 passed by this court under section 12 (2) CPC on the ground of fraud and misrepresentation which was returned to the applicant / respondent for presentation before the learned appeal court in the light of judgment reported as "Shamraz Khan & 08 others Vs. Muhammad Rafique & others" (PLJ 2006 Peshawar 319) vide judgment dated 05.03.2007.
3. In pursuance thereof, in the year 2006, the said Muhammad Aslam filed an application under section 12 (2) CPC for setting aside the judgment and decree dated 30.04.1983 passed by the learned trial court and judgment & decree dated 15.07.1984 passed by the learned appeal court in appeal No.154/13 of 1983 in the court of learned District Judge Abbottabad / appeal court, which was dismissed vide judgment dated 06.06.2009, where against respondent Muhammad Aslam filed revision petition No.281 of 2009, which was accepted vide judgment dated 22.12.2010 and the case was remanded back to the learned appeal court with the direction to frame fresh issue as to whether mutation No.619 dated 25.10.1985 has been attested in accordance with the judgment of the learned Additional District Judge / appeal court dated 15.07.1984 and whether petitione r / respondent No.1 has been deprived of his rights in the suit property on the basis of the aforesaid judgment?
4. After remand of the case, the learned District Judge Abbottabad framed the following five (05) issues: - 1) Whether petitioner has got a cause of action?
2) Whether the petitioner is estopped to sue due to his own words and conduct?
3) Whether the petition is within time?
4) Whether the judgment and decree dated 15.07.1984 passed by the court of Additional District Judge Abbottabad has been obtained through fraud and misrepresentation and the same is liable to cancellation?
5) Relief?
5. The learned District Judge directed both the parties to adduce their respective evidence, who accordingly produced the same and after hearing learned counsel for the parties, the learned District Judge vide judgment dated 19.02.2014 while allowing the petition under Section 12 (2) CPC held as under: - "The outcome of the above discussion is that judgment and decree in respect of civil suit # 154/83 for non- impleadment of Muhammad Aslam etc; is based on fraud, collusion and misrepresentation, as such, it is hereby set aside and civil suit # 154/13 is reviewed by its original Neem # followed by filing of amended plaint, whereof, the petitioner shall be impleaded in the calendar of defendants with denovo trial in accordance with law ."
The appellants, feeling dissatisfied from the aforesaid judgment passed by the learned District Judge Abbottabad, preferred the instant regular first appeal.
6. It has been argued by learned counsel for the appellants that respondent No.1, being stranger to the suit had no locus standi to file application under Section 12 (2) CPC; that initially , the respondent No.1 had filed an application under Section 12 (2) CPC before this court which was returned to him for present ation before the learned District Judge / appeal court vide order dated 05.03.2007; that the returned memorandum of application is a public document and has to be submitted, but instead of submitting the same, the respondent No.1 filed a fresh application under Section 12 (2) CPC before the learned District Judge Abbottabad; that such memorandum can neither be withheld by the party concerned nor fresh petition could be filed; that fresh petition filed by the respondent No.1 was barred by time; that during pendency of petition filed under Section 12 (2) CPC the earlier view expressed by this court reported in PLJ 2006 Peshawar 319 was changed and went on to say that where a decree / order of the forum below had been affirmed by the higher forum on merits, it was such decree / order of the higher forum, which attained the status of final decree / order within the purview of Section 12 (2) CPC; that in the present case the judgment of the District Judge was affirmed by this court on 04.10.1989 rendered in Civil Revision No. 296/84, therefore, the petitio n should have been filed before this court. In support of his contention, he placed reliance on the judgment reported as "Nasrullah Khan Vs. Mukhtar-ul-Hassa n" (PLD 2013 SC 478); that the respondent No.1 wrongly pursued his relief before the learned District Judge Abbottabad because for all intent and purposes the judgment delivered by this court on 04.10.1989, though affirmed the judgment of the learned District Judge Abbottabad, was final judgment for the purpose of Section 12 (2) CPC; that the learned District Judge had no jurisdiction to decide the matter under Section 12 (2) CPC and that the impugned judgment being without jurisdiction is nullity in the eye of law , therefore, the same is not sustainable.
7. As against this, the learned counsel representing the respondent No.1 contended that admittedly , the respondent No.1 and others were recorded as owners in the revenue record, but they were neither arrayed as defendants nor plaintif fs in the suit filed by the appellants and obtained the impugned judgment and decree by practicing fraud and misrepresentation which adversely affecte d their rights, attached to the suit proper ty; that fresh petition filed under Section 12 (2) CPC before the learned District Judge was maintainable; that no doubt in the instant case the judgment / decree passed by the learned District Judge was affirmed by this court on 04.10.1989 in C.R.No. 296- A/1984, therefore, petition under Section 12 (2) CPC was filed before this court, but it was returned to be presented before the learned District Judge Abbotta bad and in pursuance thereof it was filed before him; that the question of jurisdiction was neither raised before the learned District Judge at the time of arguments nor it was taken in the reply of application, therefore, it is not entertainable at a belated stage; that the application filed before the learned District Judge was well within time and prayed for dismissal of the appeal.
8. I have anxiously heard the arguments advanced by learned counsel for the parties and gone through the entire record minutely with their able assistance.
9. The questions, involved in this appeal, which need thorough consideration of this court are as under: - i. Whether a person, not party to the suit, can also file an application under Section 12 (2) CPC? ii. Whether decree passed in favour of the appellants, without impleading the respondent No.1 and other owners, is valid or decree in favour of the appellants by the learned trial court, upheld by the learned appeal court with slight modification, without having been impleaded respondent No.1 and other co-sharers was valid? iii. Whether the learned appeal court had jurisdiction to entertain and decide the fresh application filed by respondent No.1 under Section 12 (2) CPC? iv. Whether affirmation of the judgment of appeal court on merits by this court and it was such decree which attained the status of final decree / order / judgment within the purview of Section 12 (2) CPC? AND v. Whether petition filed before the learned District Judge was barred by time?
10. The first question formulated by me is linked with second question noted hereinabove. The first point has already been decided by the august Supreme Court of Pakistan in the case reported as "Ch. Jalal Din Vs. Mst.
Asghari Begum & others" (1984 SCMR 586) wherein it was held that person not party to the suit can also file application under Section 12 (2) CPC. In this behalf reference may also be made to the case reported as "Abdur Rauf & others Vs. Abdur Rahim Khan" (PLD 1982 Peshawar 172), wherein it was observed as under: - "It is obvious that in section 12(2), C. P. C. the word `person' and not the judgment-debtor or his successor -in- interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the law-maker been to restrict the right of filing the application, under section 12(2), C.
P. C. only to the judgment-debtor or his successor in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person, not being a judgment-debtor or his successor -in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents".
In this respect further reliance can also be placed on the judgments reported as "Mst. Afroz Jehan Vs. Mst. Noor Jehan & others" (1988 CLC 1318) and "Ch. Jalal Din Vs. Asghari Begum" ( 1984 SCMR 586 ).
11. When learned counsel for the appellants was confronted with the aforesaid judgments, he did not have much to oppose the locus standi of the respondent No.1 to file application under Section 12 (2) CPC and laid much emphasis on the other points.
12. Now turning to second question that is the absence of the respondent No.1 / applicant and other co-owners from the array of plaintif fs / or defendants and upon such exclusion they were exposed to loss of benefits, flowing from the decree in contemplation herein . Such action obviously calls for some action. It is by now settled that joinder or mis-joinder of necessary party is to be determined on the basis of allegations, contained in the plaint and relief sought on the basis of such allegations from the court and to implead a necessary party in whose absence effective decree could not be passed is fatal and such a decree is to be set aside. In this context reference may be made to the cases reported as "Hussain Ali Vs. Feroza Begum" (PLD 1971 Dacca 112), "Afroz Jehan Vs. Noor Jehan" (1988 CLC 1318), "Dinar Trading Company Vs. Allah Bakhsh" (PLD 1965 Ker 36) and "National Commercial Bank Vs. Nazir Ahmad Qureshi" ( 1980 CLC 1794 ).
13. Admittedly , respondent No.1 was recorded as one of the owner in possession in the suit property . He claimed interest in respect of land in his possess ion on the basis of revenue record and his presence was necessary for adjudication of the issue in Suit No. 374/1 instituted on 10.11.1980 decided on 30.04.1983. The decree apparently has been obtained by mis-representation and practicing fraud, as such, was liable to be set aside.
14. Now adverting to 3rd and 4th points. Initially , application under Section 12 (2) CPC was filed before this court in the year 2004 vide C.M.No. 239/04 in C.R.No. 296/1984 but it was returned alongwith C.M.No. 241/04 for filing it before the court concerned in the light of the judgment reported as "Shamraz Khan & 08 others Vs. Muhammad Rafique & others" (PLJ 2006 Peshawar 319), whereafter , the respondent No.1 filed a fresh petition under Section 12 (2) CPC before the court concerned instead of presenting the memo of application, returned by this court.
15. Now turning to the 5th contention of the learned counsel for the appellant that this court had returned the application filed by the respondent No.1, making all those endorsement which are provided under the law, and being a public document it could not have been retained by him and he is debarred from presenting a fresh petition and if so the fresh petition was barred by time. This contention of the learned counsel for the appellants is based on misconception. There is no bar either under Order VII Rule 10 CPC or in any other provisions of CPC, which precludes the plaintif f / or applicant as the case may be from filing fresh suit in case the plaint or application filed earlier in the court is returned on the ground that the court had no jurisdiction in the matter but subject to limitation.
I, therefore, hold that the application filed before this court having been returned on the ground that it had no jurisdiction in the matter and filing of a fresh application before the learned District Judge for all intent and purpose, is merely a continuation of the old proce edings in the former court. In this contex t reliance can be placed on the judgment reported as "Mst. Huwabai & 06 others Vs. Abdus Shakoor & 08 others" (PLD 1981 Karachi 277).
View, expressed in the above referred case, was approved by the Hon'ble Supreme Court of Pakistan in Abdus Shakoor 's case (1982 SCMR 867). Reliance may also be made on the case reported as "Messrs Pakistan Agro Forestry Corporation Limited Vs. T .C PAF Pakistan (Pvt.) Limited & others" ( PLD 2003 Karachi 284 ).
16. Now adverting to limitation, it is an admitted fact that the impugned decree was passed without hearing and in the absence of the respondent No.1, whose presence was essential before the court, therefore, the decree is void and nullity in the eye of law and no ques tion of limitation would arise against a void order . In this context reliance can be placed on the case reported as "Government of Sindh through the Chief Secretary & others Vs. Khalil Ahmad & others" ( 1994 SCMR 782 ), wherein it was observed as under: - "S. 12 (2)---Decree obtained by fraud---L imitation---Where parties to an agreement deceitfully agreed to transfer property owned by a third party without latter's knowledge the agreement being fraudulent and void, no bar of limitation could successfully be pleaded against the aggrieved party ."
In this behalf reference may also be made to the case reported as "Muhammad Ramzan Vs. Fazal Waheed & 05 others" ( 2004 YLR 1050 ).
17. As for as question of determination of the forum for filing of the application under Section 12 (2) CPC is concerned, it has been examined in depth in Abid Kamal' s case (2000 SCMR 900), it would be appropriate to reproduce the relevant para therefrom as follow: - "It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution Petitions filed in the High Court under Section 12(2) C.P.C. being a part of it will be applicable. In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad (PLD 1991 SC 197), such application can be filed in the Court , which passed the final order . The final order in the present case was passed by the High Court and, therefore, the application filed by the appellants was competent there."
In para No.3 of the said judgment it was further observed as under: "It is to be noted that the above view was expressed by three Hon'ble Judges of the Apex court whereas case of "Mubarik Ali Vs. Fazal Muhammad & another" (PLD 1995 SC 564) was heard by two Hon'ble Judges and whereas last mentioned case was also heard by three Hon'ble Judges including the Hon'ble Chief Justice Mr. Justice Ajmal Mian (as he then was) who has authored the judgment, therefore, the view expressed by the majority of the judges prevailing from the time when case of Secretary Ministry of Religious Affairs and Minorities & 02 others Vs. Syed Abdul Majeed (1993 SCMR 1171) was decided shall prevail. In both the cases i.e. 1993 SCMR 1171 the ratio decidendi is that if supreme court merely affirms judgment or order of High Courts by refusing leave, the final judgment in terms of Section 12 (2) CPC will be the High Court and not of the Supreme Court, if, however , supreme Court reverse a judgment of a High Court and records a finding on questio n of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purpose of Section 12 (2) CPC."
18. This view was followed by this court in the judgment reported as "Shamraz Khan & another Vs. Muhamm ad Rafique & others" (PLJ 2006 Peshawar 319) wherein it was observed as under: - "The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary , Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 that if the Supreme Court merely re-aff irms a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of Section 12(2), C.P.C. will be of the High Court and not of the Supreme Court and if the Supreme reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purposes of Section 12(2), C.P.C. The same view was reiterated in Abid Kamal v. Mudassar Mustafa and others ( 2000 SCMR 900 )."
19. This court returned the application filed by the respondent No.1 under Section 12 (2) CPC for its presentation before the appeal court on the ground that it had neither reversed nor changed the judgment of appeal court, but simply affirmed it, however , during pende ncy of the proceedings under Section 12 (2) CPC in the court of learned Distirct Judge / appeal court, the earlier view, referred to above, was changed by the august Supreme Court of Pakistan in the case reported as "Nasrullah Khan and others Vs. Mukhtar ul Hassan & others" (PLD 2013 SC 478), wherein it was held as under: - "Final decree/order of the last court in the series, even if such decree was of affirm ation, should be considered and treated to be final judgment/decree/order in terms of S.12(2), C.P.C. for approaching the relevant forum. Where the decree/order of a forum below had been affirmed by the higher forum on merits, both on points of fact and law, it should be such decree/order (of higher forum) which attained the status of final decree-order within the purview of S.12(2), C.P.C. Where a decree/order has been modified or reversed by the Appellate or Revisional Court, it shall be such decree/order of Appellate or Revisional Court, which will be final in nature for the purpose of S.12(2), C.P.C. and accordingly application could only be initiated before such forum which had altered the verdict."
20. No doubt, as stated above, earlier view was changed, but it is by now settled that the judgments of the superior courts are always prospective in nature and it has no retrospective effect. In this behalf reliance can be placed on the judgment reported as "Pir Bakhash represented by his legal heirs & 09 others Vs. The Chairman Allotment Center & others" ( PLD 1987 SC 145 ), therefore, it had not af fected the pending proceedings.
21. Last but not the least, all the objections, raised by learned counsel for the appellants, discussed hereinabove, are purely technical in nature, and even if there would have been some force in the technical objections of the learned counsel, justice could not have been sacrificed, at least in this case, on the altar of technicality which does not go to the root of the case, in so far as the fairness thereof is concerned. Pakistan is the Islamic State and the courts in our country combine law and justice under the umbrella of Islamic jurisprudence, which provides harmonious solutions for situations like the present one. One amongst other principles, which operates is that an obviously unjust and wrong decision which is also against the substantive law of the country , shall be avoided by the Court.
22. Even a winning party in our society feels embarrassed and sometimes guilty as well if it has no case under the dictates of justice, but succeeds merely on account of technical failure of the other side. It is so because justice in such a situation does not even appear to have been done. This "appearance of justice" in Islam is essential not only for lawyers and intellectuals, but they include people of Pakistan, in general the litigants / parties being the forefront.
23. It is also well known principle in Islamic justice that one, who succeeds in a litigation, unjustly must not retain the benefit. lt has been equated with burning charcoal in one's pocket, which burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. ln other words, while adhering to principle, justice in accordanc e with law, we will have to keep in mind that it is the birth right of every citizen in an lslamic State to seek and obtain justice. ln this exercise of keeping balance between undiluted justice and justice only in accordance with law, the general directional principles in lslam come to the aid when, one exerts.
24. For what has been discussed hereinabove, this appeal, being devoid of force, is hereby dismissed, leaving the parties to bear their own costs.