The captioned writ petition has been directed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , following prayer is made by petitioner: "It is, therefore, very humbly prayed that by accepting the instant petition, an appro priate writ may be issued to the effect that the impugned order passed by Respondent No, 1 (learned District Judge, Jhelum. Valley), dated 28.12.2019, is being bad in law, arbitrary , discriminate, fanciful and without lawful authority as liable to be set aside, which may very kindly be set aside. It is further prayed that the miscellaneous application No. 10, titled "Muhammad Siddique Vrs. Muhammad Hussain and another" before the Civil Judg e Chikar , may kindly be ordered to restore in its original number ."
2. Precise facts of the case as alleged by the petitioner are that applicant-petitioner , herein, filed an application under Section 12(2) of Civil Procedure Code, 1908, for setting aside the ex-parte judgment and decree dated 28.03.2017, before the learned Civil Judge, Chikar , on 22.08.2017, in respect of the land comprising Khewat No. 94, Survey No. 481 (old), 1023(new), measuring 03 Kanals 04 marlas, Survey No. 480 min (new), Survey No. 1023/1, measuring 2 Kanals and Survey No. 1026, measuring 07 Kanals 12 marlas, total measuring 12 Kanals 16 marlas, situated at Village Bandi Baqalan, Tehsil Chikar , District Jhelum Valley. It is alleged that the said decree was obtained by the non-applicants-private respondents, herein, on the basis of fraud and misrepresentation. It has further been alleged that the impugned decree has been passed against the dead person which is not maintainable in the eye of law, hence, liable to be set-aside. After filing of the application, the private respondents were summoned by the trial Court, who appeared before the Court and refuted the claim of applicant-petitioner , herein, by filing objections. In the light of the application and objections, the trial Court framed as many as 09 issues. The learned trial Court after hearing the parties on the legal issues, decided to record the evidence vide order dated 19.08.2019. Being aggrieved from the aforesaid order , Muhammad Hussain, Respondent No. 2, herein, filed a revision petition before the learned District Judge, Jhelum Valley on 14.09.2019. The learned District Judge Jhelum Valley, after hearing the learned counsel for the parties, accepted the revision petition by setting-aside the order dated 19.08.2019, along with the application under Section 12(2) of Civil Procedure Code, 1908, filed by petitioner , herein, through order dated 28.12.2019, hence, the instant constitutional petition.
3. Mr. Shahzad Shafi Awan, Advocate, the learned counsel for the petitioner submitted that the question of facts are involved in this case as the petitioner has specifically alleged that the impugned decree dated 05.08.2017, was the result of misrepresentation and fraud because the legal heirs/representative of the defendant deceased Gohar Zaman were not impleaded as party in the line of 'defendants. According to the learned counsel for petitioner , it was enjoined upon the trial Court, before passing the decree dated 28.03.2017, to implead the legal heirs of the deceased Gohar Zaman, Defendant No. 6 as party . The learned counsel argued that the petitioner should have been given an opportunity of producing the evidence to prove the question of fraud but this important aspect lost consideration of the Court below . He next argued that the suit land is in possession of the petitioner , herein, so without proper decision of the case on merits the execution of decree would not be possible, hence, craved for acceptance of the instant writ petition.
4. Conversely , Mr. Saghir Javid, Advocate, the learned counsel for the Respondent No. 2, defended the impugned judgment and submitted that no illegality has been committed by the Court below . The learned counsel also submitted that the predecessor-in-interes t of petitioner (deceased Defendant No. 6, therein), not only appeared in the proceedings of the suit before the trial Court but also had engaged the counsel, later on, he died, however , the trial Court passed the impugned judgment and decree in accordance with law, hence, prayed for dismissal of the instant writ petition.
5. After hearing the learned counsel for parties, I have perused the contents of writ petition and examined the appended documents made available with utmost care.
6. A contemplate perusal of record reveals that Muhammad Hussain, plaintif f-Respondent No. 2, herein, filed a suit for declaration-cum-perpetual injunction with regard to the land comprising Khewat No. 94, Survey Nos.1243, 1249, 1230, 1295, 1177, 1023, 1023/1, 1026, total measuring 51 Kanals 12 marlas situated in village Bandi Baqalan, Tehsil Chikar District Hattain Bala before the learned Civil Judge, Chikar on 14.12.2015. After necessary proceedings and hearing the learned counsel for the parties, the trial Court passed a decree for possession of the suit land with declaration of the rights of the Muhammad Hussain, plaintif f-Respondent No. 2, herein, against the father of the petitioner , herein, on 05.08.2017. The operative part of the judgment is as under: {{URDU TEXT}} The petitioner challenged the aforesaid judgment and decree by filing an application under Section 12(2) of the Code of Civil Procedure, 1908, alleging therein that the impugned judgment and decree is a result of fraud and misrepresentation as Defendant No. 6, father of petitioner died during the pendency of the suit and it was necessary for the trial Court to implead legal heirs of the deceased Gohar Zaman, Defendant No. 6, in line of defendants, before passing the decree because they were necessary party as the possession of the suit land lies with them.
7. The record shows that when the suit was filed, the deceased defendant Gohar Zaman was summoned and he also engaged the counsel on his behalf and later on he died on 13.08.2016. According to Rule 13 Order ,VIII of the Civil Procedure Code, 1908, (hereinafter the Code) it was the responsibility of the petitioner or any other nominated person of the deceased to intimate the Court about the death of the deceased defendant and apply for impleading his legal heirs as party in place of the deceased. Relevant rule is usefully reproduced below: "13. List of legal representatives of defendant.- -(1) In every suit of the nature referred to in R. 4, 0 XII, the written statement shall be accompanied by a statement giving--
(a) the names and addresses of the perso ns who, in the event of the death of the defendant, may be made a party as his legal representatives;
(b) the name and address of the person, who in the event of, the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representative to be made a party .
(2) A defendant may at any time-
(a) file in the Court an amended list of his presumptive legal representatives;
(b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.
(3) A nomination, made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision or review .
No list of legal representative was furnished by the deceased defendant nor his death was intimated to the Court by any of his legal heirs as there was no nominee. It was the responsibility of the legal heirs of the concerned deceased-defendant to file an application and intimate the Court about his death. When they failed to file such application, there was no any legal bar for the Court to announce the judgment and the decree. Any decree passed in such circumstances, inspite of the death of the defendant, shall be deemed a valid decree against his legal representatives and it shall be deemed as the deceased was alive at the time of judgment. The relevant Rule 4(3) of Order XXII, of the Code, is reproduced as under: "(3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place."
According to the above amended law including Rule 3(2) of Order XXII, if a party , plaintif f or defendant during the proceedings dies and his legal heirs are not impleaded, or intimation by the nominated person is not given to the Court, any decree passed against such deceased party shall be treated as the same was passed in the lifetime of the deceased party . Now, after enforcement of amended law, it is the responsibility of the one of their legal heirs or nominee to file an application and communicate the Court about the death of the respective deceased party . In the Azad Jammu and Kashmir the amended law pertaining to Order XXII of Civil Procedure Code, 1908, (that of law reforms of 1972) has been adopted, hence, in view of Order XXII Rule 4(3) of the Code, it does not make any difference that Muhammad Hussain, plaintif f-Respondent No. 2, herein, did not move an application for impleading the legal heirs of the deceased; Gohar Zaman, Defendant No. 6, before issuance of decree. The plaintif f cannot be blamed for the fault of defendant party . This stance of the petitioner has no substan ce because in absence of such application for impleading legal representative of a deceased party , when the right, to sue continues, the Court would continue for adjudication of suit and the decree so passed would be valid and enforceable.
8. Under Section 12(2) of the Code, a decree can be set-aside only when it is found by the Court that the same is the result of any fraud and misrepresentation of the plaintif f or it was passed without jurisdiction. If a party challenges any order or a decree of the Court on the ground of any fraud or misrepresentation then it has to give the particulars of the alleged fraud or misrepresentation as the case may be, mere using the general words fraud or misrepresentation is not sufficient. Rule 4 Order VI of the Code, is,very much clear on the point which reads as under: "4. Particulars to be given where necessary .--In all cases which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items of necessary) shall be stated in the pleading."
In view of above, when no particulars of any fraud have been given in the application filed by the petitioner , herein, under Section 12(2) of the Code, mere vague assertion of fraud in the application is not sufficient to invoke the jurisdiction of the Court under the said provision of law. In my view no element of fraud or misrepresentation is found in this case and the contention of the learned counsel for petitioner that the petitioner should have been given an opportunity of producing evidenc e, is also worthless. Recording of evidence in this case would be a futile exercise. The bare reading of the contents of the application does not disclose any cause for the claimed relief, therefore, plea for providing opportunity to record evidence is not sustainable.
9. The crux of above discussion is that as there is no point for further deliberation, therefore, the writ petition is hereby dismissed in limine.