Shahid Jamil Khan, J. This judgment holds, by entertaining plea for "want of jurisdiction", that this Court could not dismiss suit, while allowing revision petition against dismissal of application under Section 12(2) C.P.C.
This and connected applications, under section 12(2) C.P.C., are against decision dated 24.12.2014 by this Court. The Revision Petitions (Nos. 540 & 541 of 2004) were allowed through the consolidated judgment dated 24.12.2014, reported as Mst. Mumtaz Mai v. Sajjad Hussain etc. (PLJ 2015 Lahore 581). A compromise decree, before appellate court, was set aside and the suit by applicants (plaintiffs/appellants) was dismissed.
2. Brief facts of the case are that applicants (Sajjad Hussain etc.) filed two suits for declaration, based on registered sale deed, which were dismissed on 05.07.1993. In appeal, consenting statements were given, after receiving of consideration, by respondents No.2 and 3 (Nokar Hussain and Mazhar Hussain respectively), which resulted into consent decree dated 29.02.1994. The decree was challenged, by respondent No.1 (Mst. Mumtaz Mai), through applications under Section 12(2)
C.P.C., contending that the statements by her brothers (Nokar Hussain and Mazhar Hussain), without arraying her as party to proceedings was misrepresentation and fraud to deprive her from right in legally inherited suit property. The applications were dismissed by appellate court. Revision petition against the dismissal was allowed by this Court vide order dated 09.05.2003 and case was remanded for decision after recording evidence. The applications were again dismissed on 28.04.2004 by Additional District Judge, Karor, District Layyah, after recording evidence.
The subsequent dismissal was again challenged through Civil Revision Nos. 540 & 541 of 2004, which were allowed by this Court vide consolidated judgment dated 24.12.2014 (subject of these applications), operative part of which is reproduced hereunder:- "14. Resultantly this civil revision is allowed, judgment impugned herein alongwith the judgment and decree passed by the learned appellate Court, in result of compromise, is set aside and, that of learned trial court, whereby the suit filed by Sajjad Hussain etc. was dismissed, is upheld, with throughout cost."
(emphasis supplied)
3. Learned counsel for the applications, submitted that proceedings in the Civil Revisions were concluded and case was decided in absence and without notice to them. He contended that notices were not issued on misrepresentation that lis was between the brothers and sister. Pre- admission notices were issued only to respondents No. 3 and 4 and not the applicants. He placed reliance, for this submission, on order dated 26.10.2004, which is reproduced:- "Inter-alia contends that respondents No. 3 & 4 had filed a conceding reply to the application under section 12(2) CPC filed by the petitioner. Meaning thereby, that they had admitted the relationship of petitioner as a sister and have also admitted the fact that they had received the compensation through compromise arrived at between them and respondent No. 1 and 2 before the learned appellate court on 29-3-1994. It appears that the dispute is between the petitioner and her brothers namely respondents No. 3 and 4. In this view of the matter, let a Pre-admission notice be issued only to respondent Nos. 3 & 4...."
(emphasis supplied)
Learned counsel was confronted to show, whether applicants were proceeded ex parte or above noted order was relied upon by the learned Judge while penning down judgment dated 24.12.2004, the answer is in negative. He, however, has referred to paragraph No.11 of impugned judgment where contentions of learned counsel for respondents are noted, whereas counsel for respondents is not found marked present in opening part of the judgment.
He has also raised a legal question that after accepting applications under Section 12(2) C.P.C., the suits could not be dismissed. Contended that on acceptance of the applications, appeals should have been restored before the appellate court, with a direction for decision on merits. The court, it is argued, did not have jurisdiction to dismiss the suits, on allowing the applications under Section 12(2) C.P.C. He did not oppose the impugned judgment to the extent of setting aside compromise decree, if appeals are directed to be decided on merits after impleading Mst. Mumtaz Mai as respondent.
Learned counsel for the respondents supported the impugned judgment and submitted that notices were issued to respondents No.1 and 2 vide order dated 13.11.2013 in connected revision petition No.541 of 2004, therefore, the effect of earlier order dated 26.10.2004 was obliterated.
4. Heard, record perused.
5. This Court is not impressed with the arguments on the ground of misrepresentation and fraud, however, the legal issue whether the Court lacked jurisdiction to dismiss suit, needs examination, for which relevant findings from the impugned judgment dated 24.12.2014 are reproduced: - "8. Through this civil revision, Mst. Mumtaz Mai has come forward to challenge the validity of the findings recorded by the learned appellate court while dismissing the application U/S.12(2) CPC filed by the petitioner.
Admittedly and not denied by the parties to the suit including Nokar Hussain and Mazhar Abbas, real brothers of the petitioner, that the petitioner is the real daughter of Wali Muhammad deceased and real sister of Nokar Hussain and Mazhar Abbas. It is also established on record, that the petitioner, although she is one of the legal heirs of deceased Wali Muhammad, neither impleaded in the suit filed by Sajad Hussain etc. nor in appeal and so much so, the real brothers of the petitioner who were very much party in the civil suit as well as in appeal did not inform to the court neither any application to this effect was filed. It is also notable here, that even at the time of giving the consenting statement in appeal by the brother of the petitioner, the petitioner was not there neither she was informed. From the record and the conduct of the brothers of the petitioner, it appears rather proved, that the brothers of the petitioner namely Nokar Husain and Mazhar Abbas with the intention to deprive the petitioner from her right of inheritance, in connivance with Sajjad Hussain etc., the appellant in the appeal, managed all this and finally the appeal was accepted on the basis of so-called compromise, and suit was decreed and in result thereof the registered sale deed, which was in the name of father of the petitioner, was set aside.
9. The learned appellate court, as evident from the findings impugned herein, did not even bother to examine the record which establish and prove the status of the petitioner as one of the legal heirs. Further, the application U/S.12(2) CPC of the petitioner has been dismissed in a very cursory and casual manners which, in any circumstances, is not permitted and sustainable in law."
(emphasis supplied)
It was an admitted position before the Court that Mst. Mumtaz Mai was real sister, being daughter of deceased Wali Muhammad, therefore, is entitled to his legacy. It is found, ibid, that she was not impleaded in the suits filed by Sajjad Hussain etc. (the present applicants), or in appeals. Neither the parties to appeals informed the appellate court nor the court examined record carefully, from where it was discernable that Mst. Mumtaz Mai was a necessary party. After these findings, the applications under Section 12(2) C.P.C. were allowed, setting aside the compromise decree and by going a step further, suits by the applicants were also dismissed.
Important aspect is that applicants were not heard, while giving finding against them that they connived with brothers of Mst. Mumtaz Mai. Dismissal of suits by the applicants, in their absence, has deprived them from the right to explain their position either before this Court or before the appellate/trial court.
6. The question of jurisdictional extent, under Section 12(2) C.P.C. was discussed, extensively, in Haji Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708) by August Supreme Court. It is held that on allowing an application under Section 12(2) C.P.C., normally, court set aside the judgment assailed and restore the suit or appeal, for determination of the rights of the parties including the applicant who claimed misrepresentation or fraud. In exceptional, special and extra ordinary circumstances, the court can reject the plaint, where no cause of action is available or dismiss the suit if trial would be a futile exercise, on determination of the rights, through evidence on issues, framed while deciding the application under Section 12(2) C.P.C. Relevant excerpt of the judgment, ibid, is reproduced:- "5. ....It is in very exceptional, special and extra-ordinary circumstances where e.g. the plaint does not disclose a cause of action or is barred under the law, that while accepting the application (under the provisions of section 12(2), C.P.C.), the court may also reject the plaint or even dismiss the suit for want of jurisdiction, where the jurisdiction of the court is clearly and undoubtedly barred under the law and there is no valid reason to revive and try the suit which the court otherwise has no jurisdiction to entertain and adjudicate upon. In this context, it may be pertinent to mention that in appropriate cases of want of jurisdiction, the court while accepting the application under section 12(2), C.P.C. may order for the return of the plaint under Order VII, Rule 10, C.P.C. so that the matter is tried by a court of competent jurisdiction. But where there is a controversy of facts or of law between the parties in the main lis, while accepting the application (under section 12(2), C.P.C.), the suit cannot and should not be dismissed...."
(emphasis supplied)
7. In instant case, this Court has dismissed the suits on the findings that Mst. Mumtaz Mai is legal heir and consent decree could not be passed, in her absence. Nevertheless, the precious and well recognized principle of audi alteram partem, entrenched in due process doctrine, has been offended to the extent of applicants who were admittedly not heard while deciding Civil Revision Nos. 540 & 541 of 2004. They are deprived of an opportunity to defend against the findings of connivance with brothers of Mst. Mumtaz Mai and their right of decision on merits in appeals, if consent was defective, has not been protected.
For the reasons, ibid, it is held that this Court did not have jurisdiction to dismiss the suits after allowing the Civil Revisions against consolidated order for dismissal of applications under Section 12(2) C.P.C., therefore, the impugned judgment to this extent is modified. Necessary corollary of which is that on setting aside compromise decree, the appeals shall be deemed pending, which shall be decided after impleading Mst. Mumtaz Mai as necessary party.
This and connected application under Section 12(2) C.P.C. are allowed to the extent and in the manner noted herein.