ALI BAIG, J.---This Civil First Appeal has been preferred against the impugned judgment/order dated 23-082019 passed by the learned Additional Distric t Judge Gilgit, whereby , the learned Additional District Judge Gilgit has dismissed the application filed by the present appellant under section 12(2), C.P.C. without giving due opportunity to prove contention of petitioner/appellant.
2. Briefly facts of the case leading to the filing of this Civil First Appeal are that the present respondent No.6/ plaintif f (hereinafter called as respondent No.6) had instituted a suit for declaration and permanent injunction against the present respondents Nos.1 to 5 in the trial court in respect of suit property situated at Jutial Gilgit, which was dismissed by the learned trial court vide judgment/ decree dated 22-10-2015. The present respondent No.6 had filed Civil First Appeal in the Court of the learned Additional District Judge Gilgit. During pendency of said appeal, the parties effected compromise. The said compromise deed was made rule of the Court by the learned First Appellate Court, vide judgment/decree dated 04-07-2016.
3. The present appellant had filed an application under section 12(2), C.P.C. against the compromise decree effected between the parties in the court of learned Additional District Judge Gilgit which was dismissed by the learned Additional District Judge Gilgit vide the impugned judgment/order dated 23-08-2019 holding that the same is time barred; hence this Civil First Appeal.
4. The learned counsel for the appellant has contended that the impugned judgment/order passed by the learned 1st appellate court is contrary to law and facts on the record of the case as such the same is not maintainable and liable to be set aside. The learned counsel for the appellant has further contende d that the learned 1st appellate court has dismissed the petition of the appellant on the ground that the application filed by the appellant under section 12(2), C.P.C. is barred by time, whereas, limitation is mix question of law and facts which will be decided after framing of issues and recording of evidence and the learned 1st appellate court has committed material irregularity and illegality while holding that the application of the appellant is barred by time therefore, the impugned judgment/ order passed by the learned 1st appellate court may be set aside by accepting this Civil First Appeal.
5. I have heard the arguments advanced by the learned counsel for the appellant and perused the record of the case.
6. From perusal of record, it transpires that the appellant is a real brother of respondents Nos.1 to 5 and disputed property is common property of appellan t_ and respondents Nos.1 to 5, but the respondents Nos.1 to 5 have effected compromise with the respondent No.6 without consent and permission of the appellant as he was, not party to the suit as well as Civil First Appeal. The appellant has claimed thatthe decree was obtained by respondents Nos.1 to 6 by fraud and misrepresentation.
7. It is a well settled principle of law that if decree is obtained by fraud and misrepresentation, the limitation would start running from the date when the decree became known to the appellant as provided under Section 18 of the Limitation Act. Moreover , it is also well settled principle of law that limitation is a mix question of law and facts and requires production of evidence; hence, the learned Additional District Judge Gilait should have admitted the application filed under section 12(2), C.P.C. and framed the issues including issue of limitation and after recording of evidence the application should have been decided on merits.
Reference in this regard in made to the reported judgments of the superior courts, 1986 SCMR 1496 and 2001 MLD page 1265.
8. For what has been discussed above, this Civil First Appeal is allowed and the petition filed by the application under section 12(2) shall be deemed pending before the learned Additional District Judge Gilgit. Resultantly , the petition filed by the appellant under section 12(2) is remanded back to the learne d Additional District Judge Gilgit with the direction to dispose of the matter after framing of issues and recording of evidence of parties in accordance with law. Copy of this order along with record and proceedings of the learned Additional District Judge Gilgit be remitted back forthwith. File.