Through instant revision application, the applicants have challenged the order dated 18.02.2015, passed by the learned IIIrd Senior Civil Judge, Karachi (South), passed in Suit No. 879 of 2013 {Old Suit No. 1196 of 1998}, whereas the application under Section 12{2}, CPC, filed by the applicants was dismissed.
2. Precisely , relevant facts giving rise to this revision application are that the Respondent No. 1/plaintif f filed a suit against defendants Dr. Nazir Ahmed Said and 2 others for specific performance of contract claiming himself to be the bona fide purchaser in respect of the suit property having paid a sum of Rs. 15,92,000/- (Rupees fifteen lac ninety two thousand) out of total sale consideration of Rs. 25,00,000/- (Rupees twenty five lac) by virtue of sale agreement dated 21.09.1991. The defendants though handed over the possession of the suit property to the Respondent No. 1/plaintif f, but failed to transfer the same in his name inspite of the fact that the Respondent No. 1/plaintif f always ready and willing to pay the balance sale consideration of Rs. 9,08,000/- (Rupees nine lac eight thousand) and finally the defendants extended threats for his forcible dispossession from the suit property , hence the Respondent No. 1/plaintif f filed suit seeking following relief(s): "(a) For specific performance of sale agreement, directing the defendants to execute the sale/transfer deed in favour of the plaintiff in respect of the suit property bearing Plot No. 95, Block 'A', City Survey No. 64, Sindhi Muslim Cooperative Housing Society , Karachi, admeasuring 600 Sq. Yards, with construction thereon. In case of his failure, the Nazir of this Court may be directed to execute the Sale Deed on behalf of defendants in favour of plaintiff
(b) Permanent injunction, restraining defendants and/or any other person claimi ng through or under them from transferring/selling or alienating the said property in favour of any other person and/or disturbing plaintiffs possession and/or ejecting him from the said property in any manner whatsoever , otherwise than in due course of law.
(c) Costs of the suit.
(d) Any other relief, which is deemed proper in the circumstances of the case.
3. The defendants though served by way of substitute service, but failed to appear and contest the suit, hence service against them was held good and the matter was ordered to proceed ex-parte by an order dated 26.05.2006. The Respondent No. 1/plaintif f filed affidavit-in-ex-parte proof and by a judgment dated 31.07.2006 the suit was decreed ex-parte.
4. An application under Section 12(2), CPC was filed by the applicants seeking recall of the judgment dated 31.07.2006 claiming themselves to be the owners of the suit property on the basis of registered sale deed dated 14.07.1998 executed in the name of their deceased father Muhammad Hamid Saleem, who expired on 01.04.2004, leaving behind the applicants as his surviving legal heirs and the Respondent No. 1/plaintif f has obtained ex-parte judgment and decree on the back of the applicants by way of fraud, misrepresentation and concealment of actual facts, hence prayed for recalling of ex-parte judgment dated 31.07.2006 and decree 04.08.2006.
5. After hearing the counsel for the applicants and assessing the record, the learned trial Court dismissed the application under Section 12[2], CPC as being hopelessly time barred vide order dated 18.02.2015. Being aggrieved by the order of dismissal, the applicants have preferred the instant revision application.
6. It is, inter-alia, contended that the applicants filed an application under Section 12(2) C.P.Cagainst judgment dated 31.07.2006 and decree dated 04.08.2006, on the ground that the applicants are owners of the property , having registered sale deed in their favour prior to filing of the suit, which facts were concealed from the Court by the respondents, but the learned trial Court without providing an opportunity to the applicants to lead evidence, dismissed their application in limine. Further , he contends that question involved with regard to limitation and locus standi is a mixed question, which is requir ed to be resolved through evidence, hence, impugned orders recorded by both courts below are illegal and ab-intio void. He has relied upon 2020 SCMR 406, relevant para 18 of the judgment is reproduced here with: "18 .........However , the parties would be at liberty to adduce any fresh evidence in support of their pleadings and the trial Court should ensure that the application under Section 12(2), C.P.C. is decided within 60 days and in case the judgment and decree could not be sustained then restitution of property in terms of Section 144 should also be considered."
7. It is needful to refer here the settled principle, so repeated in the case of Haji Farmanullah vs. Latif-ur-Rehman 2015 SCMR 1708 that: "4. .................
Thus after tire insertion of this new provision, the validity of a judgment and decree etc, obtained or alleged to have been obtained on the basis of fraud and misrepresentation or from a court having no jurisdiction could only be challenged by moving an application to the same court which passed the final decree and not by a separate suit.
Therefore, normally where a judgment and decree etc. if appears to have been result of misrepresentation or concealment of facts which, if would have brought on surface, would have earned a right of hearing to a third person (not party to suit) then it would always be requirement of Safe Administration of Justice to accept such application. In short, the Safe Administration of Justice always demands that no right, title or a registered document would lose its vitality without proper and fair right of hearing/adjudication. This has been the reason that remedy of Section 12(2) CPC is not limited to judgment-debtor or party of the suit. Light is taken from the case of Ch. Jalal Din vs. Mst. Asghari Begum & Others 1984 SCMR 586 the Honourable Apex Court held that: "It is obvious that in Section 12(2) C.P.C, the word Person' and not the judgment-de btor 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 reproduce above do not speak of any bar in approaching this court against the order passed by the Courts subordinate to it and where appeal against that is not provided, thus in my humble view of the matter , I am fortified by a decision in the case of Mst. Safia Mushtaq vs. Wali Muhammad and 18 others (2010 CLC 12) where Hon'ble Mr. Justice Gulzar Ahmed (the then judge of High Court of Sindh) has held as under: "As regards the maintainability of the Revision Application, as the counsel for the private respondents has himself conceded that the Revision Application can be filed directly in the High Court against an order in exceptional cases, this in itself amounts to negating the objection raised by the counsel for private respondents. In any case, I have gone through the provisions of Section 115 of C.P.C. and find that it gives concurrent jurisdiction to the High Court as well as the District Court to entertain Revision Applications against the order passed by the Courts subordinate to it. Subsection (2) of Section 115, C.P.C. is the provision by which such concurrent jurisdiction is conferred upon the District Court, but such conferment of concurrent jurisdiction is limited where the amount or value of subject matter does not exceed the limits of its appellate jurisdiction. This being limitation placed upon the District Court for entertaining the Revision Application, it has no application to the High Court nor such provision takes away the jurisdiction of the High Court from entertaining the Revision Application against the order passed by a Court subordinate to it. For these reasons I find this revision Application to be maintainable."
10. Prima facie , there is no exception to the instant revision application rather it appears to be falling within four corners, so sketched for entertaining a revision application. Needless to add that entertaining a revision application is something quite different from inclining the same which shall require, prima facie , establishing of grounds, so detailed for accepting a revision application. Without prejudice to 'this, entertaining a revision for hearing is only in affirmation to legitimate right of challenge an order , so passed by a subordinate court for which no right of appeal is provided, yet substance thereof causes grievance to a litigating party . Accordingly , in view of the above decisions, the instant Revision application is held as maintainable and resultantly the of fice objection is overruled.
11. As regard the limitation, I would say that this is, normally , a mixed question of fact and law hence when, prima facie , valuable rights are involved it is always better to allow the parties to lead their claim (s) rather to bring a full stop to such valuable rights without their being any due process of law. In the case of Muhammad Bashir & another vs. Province of Punjab through Collector of District Gujrat & Ors 2003 SCMR 83 it was observed as: "7. ... Legal formalities and technicalities are intended to safeguard the paramount interest of justice and devised with a view to impart certainty , consistency and uniformity to administration of justice and to secure the same against arbitrariness, errors of individual judgment and mala fides. General speaking the object of a superior Court, while exercising its discretionary jurisdiction, is to foster the ends of justice, preserve the rights of parties and to a right a wrong and, keeping this object in view, it may in equity , set aside or annul a void judgment or decline to enforce it by refusing to intervene in the circumstances of the case.
12. Worth adding that in said case, the valuable rights were given preference over the delay in approaching Court of law. It is worth adding that since filing of instant revision application, notices were issued to respondents;. they were served; they engaged counsel and in 2018 Mr. Muhammad Ali Waris Lari, advocate appeared for intervener , whereas the remaining respondents were also served through substituted service including publication but failed to cause their appearance, there appears no reasonable justification for keeping the matter pending when the applicants, prima facie , have a right of hearing but their application, moved under Section 12(2) CPC, was dismissed in limine though their title (registered document) has never been adjudicated as cancelled . Accordingly , both orders are set aside; case is remand ed back to the trial Court with directions to frame legal issues and provide an opportunity to the parties to lead their evidence.
The instant Revision Application stands disposed of in the foregoing terms.