CH. MUHAMMAD MASOOD JAHANGIR , J.---The condensed facts to better understand litigation in hand are that valuable suit bungalow originally vested to Mst. Syeda Mehmooda Begum/respondent No.1, who was reported to be dead and thereupon through inheritan ce mutation No.6556 dated 21.05.1985 the said property was devolved upon respondents Nos.2 and 3. The latters thereafter transferred it to respondent No.8 via sale deed dated 05.04.1989, which was then purchased by present petitioner through registered instrument dated 27.05.1989 and lastly mortgaged by the latter with Allied Bank Limited/respondent No.6 via registered document dated 12.10.1993.
The petitioner failed to repay the loan consideration, compelling respondent No.6 to file recovery suit against the former as well as her other family members before the learned Banking Court, which was ex parte decreed on 08.02.2002. In execution proceedings, three objection petitions; one on behalf of petitioner , the other with the name of Syeda Mehmooda Begum/ respondent No.1 and the third on the part of respondents Nos.3 and 4 were tabled before the Banking Court. The crux of last two petitions was that Syeda Mehmooda Begum original allottee/owner had never died, rather by practicing misrepresentation, she was shown to be dead so as to maneuver inheritance mutation dated 21.05.1985, thus being result of fraud stood already cancelled via judgment of 30.06.2003 by the learned Civil Court while decreeing civil suit allegedly instituted on behalf of Syeda Mehmooda Begum/respondent No. 1, who subsequently further transferred suit bungalow to respondents Nos.3 and 4 as well. It was a hard fact that afterwards on being apprised before Executing/Banking Court that Syeda Mehmooda Begum/respondent No.1 had died on 05.12.2003, her application without decision to logical end was simply disposed of, however , the other made by respondents Nos.3 and 4 (alleged transfrrees on the part of respondent No.1 ) proceeded and though accepted by the learned Banking Court on 24.02.2010, but the horible Division Bench of this Court through judgment dated 24.03.2015 while allowing E.F.A. No.394/2010 dismissed the same, which is now subject of. Civil Petition No.833/2015, pending before the august Supreme Court.
2. The other page of the litigation was that during the era of pendency of EFA No.394 before this Court, the present petitioner and respondent No.6 tabled two independent applications under section 12(2) of the Code, 1908 for setting aside of decree dated 30.06.200 3 passed in favour of late respondent No.l. Despite that both of these applications were pending determination before the similar Judicial Officer, but he vide order dated 31.10.2019 opted to summarily dismiss the one made on behalf of petitioner and that too solely on the score of limitation, whereas the other tabled by respondent No.6 is still sub judice there. The order dated 31.10.2019 for dismissal of application under section 12(2) of the present petitioner was sustained before the learned Additional District Judge, when her Civil Revision failed as well vide order dated 18.08.2020, thus this petition on the part of present petitioner .
3. It is matter of record that while passing the impugned orders, the learned Courts below also passed some remarks touching upon merits of the application filed under section 12(2) of respondent No.6, who being aggrieved preferred connected Writ Petition No.41571/2020 as well. Both these files have arisen out of the common impugned orders qua alike subject matter , therefore, for all intents and purposes , it is appropriate to decide the same jointly through this single judgment, however for reference, source will be file in hand.
4. Mr. Harts Azmat, ASC worthy counsel for the writ petitioner while relying upon various judgments of the superior Courts reported as Syed Imran Raza Zaidi, Superintending Engineer , Public Health Engineerin g Circle-I Gujranwala v. Government of the Punjab through Service, General Administratio n and Information Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645), Lahore Development Authority through Director - General v. Arif Manzoor Qureshi and others (2006 SCMR 1530 ), Shazia Munawar v. Punjab Public Public Service Commission through Secretary , Lahore (PLD 2010 Lahore 160), Muhammad Ashraf Butt and others v. Muhammad Asy Bhatti and others (PLD 2011 SC 905), Haji Abdul Sattar and others v. Farooq Inayat and others (2013 SCMR 1493 ), Muhammad Altaf v. District Judge and 3 others (2016 YLR 1191) and Hazoor Muhammad v. Raqia Begum (deceased) through L.Rs. (2020 CLC Note 19) has argued that law favours adjudication of /is on merit, but the learned Civil Court without fetching or consulting the original suit file wherein subject decree was passed pronounced its impugned order in haste, which being against the cannons of justice is not sustainable. Mr. Haris further emphasized with great vehemence that without determination of the basic controversy whether Mst. Syeda Mehmooda Begum/respondent No.1 died in 1985 viz prior to attestation of inheritance mutation No.6556 or thereafter on 05.12.2003 i.e. after passing of subject decree dated 30.06.2003, erred in law while summarily dismissing application under section 12(2); that, indeed, real as well as serious factual controversy revolved around elements of forgery , misrepresentation and fraud, which could only be resolved after settling of issues and requiring evidence in pros and cons of the respective parties. The learned counsel for the petitioner further contended that against the same impugned decree, there were two identical applications, one by his client and other on behalf of respondent No.6, therefore, under the law and per propriety , the Judicial Officer seized thereof was bound to culminate both of those jointly , but while deciding solely that of the former and keeping the other pending, no better result was achieved, because fate of the subject decree is still under question before the same forum. Mr. Haris further maintained that Hon'ble Division Bench of this Court vide order dated 24.03.2015 passed in E.F.A.
No.394/2010 has already disbelieved the version of respondents Nos.1 to 3, but herein the subordinate Courts passed the impugned orders while ignoring the reasoning returned thereunder . At the fag end of his arguments, learned counsel for the petitioner maintai ned that point of limitation in such like cases is also a mixed question of law 'and fact, which could only be decide d after due trial, and that when other petition under section 12(2) has not still been decided on the score of limita tion, the Courts below were not within its jurisdiction to knock out the petitioner on said point, therefore, impugned orders being coram non judice, ultra vires and suffering from jurisdictional defect are liable to be set aside.
Mr. Moiz Tariq, ASC, worthy counsel for respondent No.6 (the petitioner of connected Writ Petition ) has adopted the above noted arguments with the addition that when application under section 12(2) of his client was still pending without its culmination, there was no justification for passing any observations to af fect ultimate fate thereof.
On the same lines, Malik Nadeem-ud-Din, ASC appearing on behalf of respondent No.8 has not only endorsed the grounds advocated by his aforenoted two brothers, rather asserted as well that learned Civil Court lacked jurisdiction to entertain or decree the purported suit of respondent No.l.
5. In response, Syed Muhammad Kaleem Ahmad Khurshid, ASC, worthy counse l for the contesting respondents Nos.4 and 5 while relying upon case law cited as Majid Ali Naqvi v. Additional District Judge and Ex-officio Settlement and Rehabilitation Commissio ner, Tharparkar and another (1970 SCMR 375), Muhammad Sharif v.
Chief Administrator , Auqaf and others (1975 SCMR 104), Allah Wasaya and 5 others v. Irshad Ahmad and 4 others (1992 SCMR 2184 ) Amiran Bibi and others v. Muhammad Ramzan and others (1999 SCMR 1334 ), Abdullah v. Shaukat (2001 SCMR 60), Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and others (PLD 2001 SC 1028 ), Tariq Mahmood v. District Returning Officer , District Faisalabad and 3 others (2001 SCMR 1991 ), Din Muhammad and another v. Subedar Muhammad Zaman (2001 SCMR 1992 ), Faizum alias Toor v. Nader Khan and others (2006 SCMR 1931 ), Mst. Shabana Irfan v. Muhammad Shafi Khan and others (2009 SCMR 40), Lahore Development Authori v. Firdous Steel Mills Pvt. Ltd. (2010 SCMR 1097 ), Ghulam Rasool and others v. Akbar Ali and others , (2011 SCMR 794), Raja Muhammad Arshad v. Raja Rabnawaz (2015 SCMR 615) and Nasrullah Khan and another v. Mst. Khairunnisa and others (2020 SCMR 2101 ) has supported the impugned orders. He further argued that application under section 12(2) was filed by the petitioner after about 10 years of the pronouncement of the subject decree, which on its face value was time-barred; that petitioner at least learnt about the subject decree before the Banking Court, where during the proceedings for its realization in favour of respondent No.6, late Mst.
Syeda Mehmooda Begum preferred objection petition, thus even from that point of time, the application for its setting aside was tabled beyond provided time; that question of limitation is not mere technicality , rather sine qua non for the Courts seized of the lis to itself apply the same in appropriate cases,, therefore, both the Courts below perfectly rejected badly time barred application. The learned counsel for respondents Nos.4 and 5 further pleaded that authentic record was available on the file to ascertain that respondent No.1 died after grant of consent decree dated 30.06.2003, thus the inheritance mutation dated 21.05.1985 was definitely product of fraud and the entire superstructure raised thereupon was rightly bulldozed. In the end it was emphasized with great vehemence on the part of Mr. Kaleem that concurrent findings recorded by the Courts below cannot be upset while exercising jurisdiction provided under Article 199 of the Constitution of 1973.
6. Arguments heard. Record perused.
7. As per available record, one party (petitioner , respondents Nos.6 and 8) is claiming that respondent No.1 passed away' in 1985 or prior thereto and thereby the inheritance mutation along with various registered instruments were not only attested, rather money decree by the Banking Court passed as well, whereas in contra, the other/rival party (respondents Nos.4 and 5) is asserting that respondent No.1 after getting the consent decree from the Civil Court in her favour and transferring the suit bungalow to them as well, subsequently departed in 2003. In such situation, the real controversy inter se both sets of the parties could not be resolved until and unless the date of death of respondent No.1 was determined through proper/ due trial, but unfortunately the said recourse had not been adopted so far. The argument of Mr. Kaleem, ASC, worthy counsel for respondents Nos.4 and 5 that judicial proceeding conducted by the Civil Court while passing the decree in favou r of respondent No.1 attained presumption of truth might have some force, if its veracity/ genuineness was not attacked by filing application(s) under section 12(2). It is yet to be ascertained whether petitioner was duly served or she appeared during said proceedings. So far nothing was brought on record to suggest that petitioner after having knowledge with regard to impugned decree kept quiet and any such stance, if existed, is still unproved. This Court has minutely gone through the grounds (i) to (viii) agitated in application under section 12(2), which definitely require due trial for its adjudication while affording opportunity to the petitioner to prove the same by leading evidence to that effect, whereas respondents Nos.4 and 5/beneficiaries will also have a right to rebut the same by producing relevant witnesses-documents. However , the learned Civil. Court without conducting said drill work precipitously defeated the petitioner in spite of that mere lack of proof or its weakness in circumstances of the case does not furnish any justification for coming to conclusion that there was no cause of action and while taking action for rejection of lis, the Court cannot take into consideration pleas raised by the opponent in his defence as at that stage, the same are only contentions in the proceedings unsupported by any evidence on record. There is no second opinion that whenever a controversial question of fact, especially practice of fraud is raised, the proper course for the Court will be to frame issues on such question and decide the lis on its merits in the light of evidence to be made available before it. The contents of applications under section 12(2) filed by petitioner also prima facie disclose cause of action against respondents Nos.4 and 5, which could not be rejected witho ut recording of evidence. See Muhammad Akram Malik v. Dr. Ghulam Rabbani and others (PLD 2006 SC 773), Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR 236) and Lahore Development Authority v. Arif Manzoor Qureshi and others (2006 SCMR 1530 ). It is hard fact that so far, in due course of proceedings, stance of respondents Nos.4 and 5 to some extent has already been discredited by Hon'ble Division Bench of this Court vide judgment dated 24.03.2015 passed in E.F.A. No.394 of 2010. For ready reference, the relevant extracts out of para 6 of said verdict are reproduced hereunder:- "*The record shows that separate consenting written statements were filed by Mst. Tanveer Bokhari, Zohra Fakhar Bokhari and Mst. Halima Shuja. Though the counsel of all the three defendants in the suit was same, whose name is Noor Muhammad Advocate. A consent decree was passed on the basis of consenting written statements as well as making statements by Mst. Tanveer Bokhari and Zohra Bokhari appearing before the court on 17.06.2003 and 18.06.2003. No statement of Mst. Halima Shuja was recorded and the suit was decreed through a short order dated 30.06.2003 having only four lines on the basis of alleged conceding written statements and statements of defendants.. It is on the record that through the suit basically the inheritance mutation was challenged and no subsequ ent sale deeds, transfers or mortgage deeds were specifically challenged in the suit. Neither the appellant/Bank nor Pasban Co- operative Housing Society were made party to the suit. Though the learned counsel for the the appellant has argued the matter with regard to fraudulent passing of decree in favour of said Mst. Syeda Mehmooda Begum which has been challenged by respondent No.4 whose application under section 12(2) of the C.P.C. is pending and appellant's writ petition is also pending wherein subject matter of the lis is application under section 12(2) of C.P.C. filed by the appellant/Bank, therefore, we refrain ourselves from commenting upon the validity of passing of judgment and decree, as the same is subject matter of applications filed by the appellant as well as respondent No.4, which are pending adjudication. We presume that a decree has been passed in favour of Mst. Syeda Mehmooda Begum the original owner on 08.02.2002 with the consents of parties, where admittedly the mortgage in favour of appellant was not challenged and further the transfer in favour of Pasban Co-operative Housing Society was not challenged neither Pasban Co- operative Housing was made party nor the appellant/Bank, in that eventu ality, whether that decree is binding upon the appellant and Pasban Co-operative Housing Society . *"
"***Another question is very important that a simple declaration was sought knowingly that property has been transferred thrice through registered sale deeds etc and has been mortgaged with the appellant/Bank without challenging those transfers, the decree got executed through the court whereby the orders were procured from the court for cancellatio n of sale deeds etc are also showing fraud on the part of respondent No.1 Mst. Samar Abid. Another factor has been shown that Colonel Saif-ud-Din Qureshi is father and attorney of Mst. Samar Abid, the objector and the alleged death certifica te produced in the objection proceedings shows that said Colonel Saif-ud-Din Qureshi received the body of Mst. Syeda Mehmooda Begum from Hospital. This document has been produced by the objector herself to show the date of death which speaks against her also."
Undoubtedly , the said conclusion rendered by the superior forum until and unless holds field was binding upon the subordinate Courts and needed to be honoured while passing the impugned orders . No doubt, the apex Court vide order dated 19.05.2017 has granted leave to respondents Nos.4 and 5 in their C.P. No.833 of 2015, but the core issue to be resolved among others, as discussed hereinabove, is qua determination of tenure/date of death of respondent No. 1 . It is admitted position as well that via subsequent order dated 29.04.2020, the apex Court has already required the learned Trial Court first to decide fate of the application under section 12(2) made by respondent No.6. Thus when the last Court is also in agreement that basic issue, initially should be decided by the Court of first instance, then remittance of matter in hand to the said forum as well will not cause any harm/prejudice to either of the parties because the verac ity or otherwise of the subject decree is yet to be inquired/probed at that level.
8. So far as question of limitation is concerned, in such like cases where element of forgery , misrepresentation or fraud is involved, the said issue cannot be decided summarily , rather it being mixed question of law and fact can only be adjudicated upon after settling issues and appreciating the evidence to be led by the parties in pros and cons. So far per cited part of the judgment passed in EFA, the factum of death of respondent No.1 in 2003 (after the sanction of inheritance mutation ) has prima facie been found doubtful and the same itself is sufficient to take the case in hand out of the purview of provided period of limitation. See 'Abdul Rahim and another v., Mrs. Jannatay Bibi and 13 others ' (2000 SCMR 346). Till this time, it is the stance of petitioner that documents presented by respondents Nos.4 and 5 qua, death of respondent No.1 in 2003 were false, which to some extent was further authenticated by horible Division Bench while allowing EPA against respondents Nos.4 and 5 and such matter is now sub judice before the apex Court. In the given circumstances, indeed, an inquiry was necessary and in absence thereof the real crux of the controversy that when respondent No.1 died would remain in mystery . Thus, this Court is of the view that issue of E limitation in the lis in hand involves mixed question of law and fact, which cannot be determined without conducting due trial.
In addition thereto, it is well established by now that where an order/judgment was challenged through different appeals or petitions and if any one out of those was brought within time, while the others were preferred beyond specified period, then all those matters ought to be decided on merit especially when an order in one appeal or petition would apply to the connected/is/matters, even if brought after provided limitation. See Mehreen Zaibun Nisa v. Land Commissioner , Multan and others (PLD 1975 SC 397), Shazia Munawar v. Puniab Public Service Commission through Secretary , Lahore (PLD 2010 Lahore 160), Muhammad Ashraf and others v. U.B.L. and others (2019 SCMR 1004 ) and FBR through. Chairman, Islamabad and others v. Messrs Wazir AU and Company and others (2020 SCMR 959 ). The relevant portion of second last judgment is reproduced hereunder:- 'Out of the three instant Civil Petitions before us, one Civil Petition bearing No.3032-L of 2016 is barred by limitation and accompanied by an application for condonation of delay i.e. Civil Misc, Application No. 3057 of 2016, while the other two Civil Petitions bearing Nos, 2701-L and 2994-L of 2016 are within time. It is settled law that where an order or Judgment is challenged through separate proceedings be it appeals or petitions, some of which are within time, while the others have been filed beyond the period of limitation, all such appeals or petitions ought to be decided on merit especially when an orders in one appeal or petition (within time) would apply to the other appeal or petition, which may be barred by limitation. Consequently , it is appropriate to decide all three Civil Petitions on merits.'
Similarly , in FBR's case (supra) it was held as under:-- '***when a common question of law is decided in one case, another case involving the same point that is time barred is liable to be heard on merits. Consequently , following the said principle, we condone the delay and insofar as the merits are concerned, for reasons to be recorded later , we allow this appeal.'
9. Lastly , attending to the plea propounded by the learned counsel for respondents Nos.4 and 5 that the constitutional jurisdiction could not be exercised by this Court for interference in the revisional order of the Addl.
District and Sessions Judge. Suffice it to say that on account of the provisions of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is an inalienable right of every citizen to enjoy the equal protection of law and to be treated in accordance therewith, thus, if a Revisional Court has passed an order, which does not qualify the test of Article 4 ibid and suffer from a patent error of fact, such as non-reading as well as misreading of the material on the record or has committed a grave illegality in applying the correct law, such as the error of misapplication and non-adherence of correct law, thus being an illegality of a sheer nature can always be rectified by this Court while exercising its constitutional jurisdiction under Article 199, as no bar/limitation in this behalf on the exercise of constitutional jurisdiction either emanates from the plain reading of the Article or can be read into it.
The case law referred to above, cited by learned counsel for respondents Nos.4 and 5, has minutely been gone through, but having been found to be based on distinguishable features with regard to facts and circumstances of instant case is of no help to them.
10. As patent wrong is found in the orders rendered by both the Courts below , which went to the roots of the case and the petition filed by petitioner could not be decided summarily or separately , therefore without commenting upon the other merits of the case, lest it should prejudice case of either side, the Constitutional Petition in hand is allowed and the impugned orders of the Courts below are hereby set aside. Consequently , applications under section 12(2) filed by petitioner along with that of respondent No.6 will deem to be pending before Civil Court, which after settling issues and recording of evidence be decided jointly within next six months positively . In view of such development, the other tagged writ petition filed behalf of respondent No.6 has borne fruit as well, which stands deposed of accordingly . The parties will appear I before learned Civil Court on 14.06.2021 for further proceedings.