WIOAR AHMAD, J.- Respondent No. 1 namely, Mst. Ameena Begum filed a suit against Taj Ud Din Shinwari and others (respondents No. 2 to 9 herein) for declaration, permanent injunction and possession, to the effect that she was owner in possession of property in dispute bearing Khasra No. 261, 267 and 389/257 situated in the revenue estate of Mauza Kamboh District Peshawar on the strength of mutation No. 1100 attested on 26.6.1989. She has further averred that the general power of attorney No. 3446 dated 30.10.1994 executed on her behalf in favour of Taj Ud Din Shinwari was the result of fraud and collusion and that the transfer of suit property by Taj ud Din on the basis of said power of attorney in favour of other defendants (in the suit) was illegal and as such was ineffective upon her rights. The suit was contested by respondent No.2 and others by filing written statement. Learned Civil Judge-XIII, on conclusion of the proceedings, dismissed the suit vide judgment and decree dated 21.1.2014. Feeling aggrieved, respondent No.1 filed appeal before learned Additional District Judge-IX, Peshawar, which was allowed vide judgment and decree dated 13.5.2015 resultantly judgment and decree passed by learned Civil Court was set side and the suit was decreed. Feeling aggrieved, respondent No.2 (Taj Ud Din Shinwari) filed civil revision before this Court but same was dismissed vide judgment dated 18.12.2015.
2. Now the petitioners have filed instant application under section of Code of Civil Procedure, 1908 (herein after referred to as "CPC"), seeking setting aside of judgments and decrees of the learned lower courts as well as of this Court mentioned above, on the ground that same have been obtained through fraud and misrepresentation.
3. Arguments heard and record perused.
4. Perusal of record reveal that petitioners are seeking setting aside judgment and decree dated 18.12.2015 passed in CR No. 484-P/2015, judgment and decree dated 13.5.2015 passed by learned Additional District Judge-IX, Peshawar as well as judgment and decree dated 21.1.2014 rendered by learned Civil Judge-XIII, Peshawar through instant application filed under section 12(2) CPC so as to allow them fair chance of hearing in the suit. For deciding whether any fraud had been committed in obtaining the decrees referred above, history of the transactions that had taken place in pursuance to the general power of attorney registered as deed No. 3446 bahi No.4 Volume No. 312 dated 30.10.1994 in the office of Sub Registrar Peshawar, cannot be lost sight of. In this respect it is important to note that three mutations had been challenged in the plaint i.e. Mutation No. 3538 dated 7.12.2001 ( transferring 6 marlas), Mutation No. 3711 attested on 19.9.2003 ( transferring 2 marlas) and through Mutation No. 2988 attested on 30.5.1998 ( transferring 18 Marlas). The above mentioned three mutations were not the only mutations entered and attested in respect of the land which was the subject matter of the power of attorney but there have been a number of transactions a brief history of which has also been given in the application under section 12(2) CPC particularly in ground "C" which is also reproduced hereunder.
"C. That a short history of the disputed property is as under: i. That the plaintiff /respondent No.! Mst. Amina Begum was became owner of the disputed property vide mutation No.1100 dated 27.6.1989 to the extent of 30 marlas situated in the main Peshawar City Khan Colony Kamo back to the Buss Adda a congested area of the city and one of the posh and valuable property. ii. That Mst. Amine Begum executed a power of attorney in favor of one Taj Ud Din ( defendant No.1/respondent No.2) vide registry No. 3466 dated 30.10.1994 before the sub Registrar Peshawar regarding the disputed property. iii. That one Mohammad Iqbal respondent No.10 became an owner from Taj Ud Din vide registry No. 3476 dated 31.10.1994 before the Sub Registrar Peshawar. iv. That the said Muhammad Iqbal transferred 18 marlas out of 30 marlas in the shape of constructed quarters vide registery No. 2180 dated 23.7.1997 in favour of Abdul Rashid, Abu Bakar Siddique, Zia ur Rehman, latif Ur Rehman and Shahid Rashid/respondents No. 5 to 9 who are in possession of the said quarter till date. v. That in the light of registry No. 2180 mentioned in apra-4 in mutation No. 2988 dated 30.5.1998 was attested in the revenue record which is incorporated in the jamabandis. vi. That the said Muhammad Iqbal ( attorney) further attested a mutat6ion No. 3266 dated 29.6.2000 in favour of one Gul Badshah/respondent No. 11 to the extent of 4 marls consisted of 2 quarters. vii. That a mutation No. 3538 attested on 2.12.2001 in favour of Abdul Ghaffar/respondent No.3 was attested by the said Muhammad Iqbal (attorney) to the extent of 6 marlas. viii. That a registry No. 637 attested on 5.3.1998 in favour of Muhammad Fahim/respondent No.4 from Mohammad Iqbal ( attorney) to the extent of 2 marlas in the shape of one quarter executed. ix. That mutation No. 3711 attested on 19.9.2003 was incorporated in light of registry mentioned in para No. viii in the revenue record and jamabandis. x. That a registry No. 443 bahi No. I Volume No. 1845 dated 29.1.2004 was attested by said Gul Badshah /respondent No. 11 in favour of petitioner No.1 to the extent of 4 marlas in shape of constructed quarters with possession. xi. That a mutation No. 3715 dated 19.9.2003 was attested to the extent of 2 marlas in favour of Razam Khan (predecessor of the petitioners) from said Muhammad Fahim/respondent No. 4.
The said Razam Khan died in the year 2012. xii. That a mutation No. 5969 dated 27.5.2015 attested in favour of one Yasir Ayaz/petitioner No. 11 from Abdul Ghaffar /respondent No.3 to the extent of 5 marals in shape of constructed house.
5. while replying to ground 'c' the contesting respondents have stated in their reply as follows.
"Ground C with its sub paras (I to xii) are vehemently denied. No transaction from respondent No.1 in personal capacity with any of the petitioners has taken place. It is been established from concurrent judgment and decrees of learned appellate court and this Hon'ble Court that no power of attorney was ever executed by respondent No.1 in favour of respondent No.2 and 10, rather these were found fake and bogus. Therefore, the transfers made by respondent No.2 and 10 are void ab initio and without lawful authority. These transfers do not create any title about suit property in favour of petitioners. The petitioners have legal remedy to sue the respondent No.2 and 10 for deception and fraud, committed by them with the petitioners outside the proceedings of Court. Detail reply has been given in the preliminary objections."
6. It is noteworthy to mention that in above reproduced reply all the transactions have been dubbed as unlawful, for the reason that the basic power of attorney challenged in the suit had not been properly obtained. The petitioners have further been advised to sue respondent No.2 and 10 for deception and fraud. It has also been mentioned in the reply that fraud had been committed by respondent No. 2 and 10 outside the court proceedings and therefore, no application under section 12(2) CPC lies. Main force of learned counsel for contesting respondents was also on the ground that since fraud had not been committed in the proceedings of the suit therefore, the application filed under section 12(2) CPC was not maintainable. In support of his assertion, he also placed reliance on the judgment of Hon' ble Lahore High Court reported as 2008 CLC 844 and Hon'ble Sindh High Court reported as 1993 MDL 1555 Karachi. In response learned counsel for petitioners relied on judgment of Hon'ble Supreme Court of Pakistan reported as 1984 SCMR 586 and 2015 SCMR 1708 as well as judgment of Hon'ble Lahore High Court reported as 2015 CLC 1428.
7. It was quiet apparent from the history of the transactions reproduced in ground 'C' as well as reply thereto that a number of transactions had taken place after execution of the general power of attorney and the property in dispute had changed so many hands. All the persons having proprietary rights created through various registered instruments or mutations had not been arrayed as parties nor their transactions of sale had specifically been challenged in the plaint. In their absence the whole proceedings had been conducted and the decree had been obtained by respondent No.1 for cancellation of the power of attorney as well as resultant transactions. The petitioners in the instant 12(2) CPC petition had obtained the property in question through two separate deeds. Petitioner No.1 had obtained property to the extent of 4 marlas through registry No. 443 Bahi No. 1 Volume No. 1845 dated 29.1.2004 from respondent No.11 namely Gul Badshah.
Similarly, predecessor of petitioners No. 1 to 7 namely Razam Khan had obtained the property to the extent of 2 marals vide mutation No. 3715 attested on 19.3.2003 from respondent No.4 Mohammad Fahim. Similarly, petitioner No. 11 Yasir Ayaz had purchased 5 marals property through mutation No. 5969 dated 27.5.2015 in the revenue estate of mauza kamboh. All these transactions (except the last mutation No. 5969) had taken place before institution of the suit which had been instituted on 30.7.2011. These persons despite being owners in possession of the parts of the property in dispute had not been arrayed as parties and by cancelling the general power of attorney through decree in the suit in question their transactions of purchase had been divested of the very foundation i.e. the general power of attorney. In such perspective of facts objection of learned counsel for respondent No.1 that fraud had not been committed in the proceedings of the suit was found to be holding no ground. Section 12 was providing as follows;
12. Bar to further suit. ---(1) where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any court to which the Code applies.
Sub section 2 of section 12 was providing that i f a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
During prevalence of the present judgment and decree no fresh suit can be filed therefore, the only remedy available to the petitioners was to file 12(2) CPC application. The requirement was that a ground of fraud and mis-representation should exist. If a person knows that on the basis of power of attorney challenged in the suit the property had further been transferred and does not array a transferee as party, conceals pendency of such suit from him and obtain a decree, it could easily be called to be a decree obtained on the basis of fraud. In such perspective Lahore High Court while rendering its judgment in case of Doctor Imran Manzoor and another..vs. Mst. Nighat Bahar Khanum and 10 others ( 2015 CLC 1428) has categorically held that where a party whose rights are involved in a subject matter of the suit is omitted to be sued and a decree is obtained in any suit then same would amount to commission of fraud. Rights of applicant have no doubt been adversely effected as a result of the judgments and decrees and there is no doubt that these petitioners cannot file a separate suit due to existence of the earlier judgment and decree. The only remedy available to them was filing of application under section 12(2) CPC and this court on hearing the parties has also come to the conclusion that they had been necessary parties for adjudication of the earlier suit but they had not been arrayed as defendants in the suit therefore application filed under section 12(2) CPC deserve acceptance.
8. Next point for consideration before this Court is that on acceptance of their application this court may reopen Civil Revision No. 484-P/2015 earlier decided by this Court vide judgment dated 18.12.2015 but the fate of said revision petition is also apparent that the matter will then be remanded to the civil Court for arraying the applicants as necessary parties in the suit. Hon'ble Supreme Court of Pakistan while rendering its judgment in the case of Haji Farman Ullah...vs...
Latif Ur Rehman ( 2015 SCMR 1708) has held that when on the basis of material present before a Court, it can form an opinion that the main suit should be dismissed while allowing application under section 12(2) CPC then the court would have the powers to dismiss the main suit at the time of allowing the application under section 12(2) CPC and if such material is not available then on acceptance of the application under section 12(2) CPC the suit should be revived and then proceeded further in accordance with law. Matter in dispute in case in hand is of such a nature that the application under section 12(2) CPC is being allowed for the reason that the applicants had not been arrayed in the suit bearing No. 161/1 filed before learned Senior Civil Judge, Peshawar on 30.7.2011 (Mst. Amina Begum..vs..Taj Ud Din Shinwari and 09 others). They were also necessary parties and due to their non-impleadment their rights have adversely been effected without affording them an opportunity of hearing. After rendering such findings if revision petition is restored same would obviously be allowed to the effect of setting aside impugned judgments and decrees of both the court below and remanding the matter to the civil court where applicants would be ordered to be impleaded on the panel of defendants in the main suit. In such circumstances reviving of the civil revision for re-hearing and then re-deciding same would be an exercise in redundancy.
9. It would be appropriate that not only judgment and decree dated 18.12.2015 passed by this Court in C. R No. 484- P/2015 is set aside but judgment and decree of learned appellate Court dated 13.5.2015 as well as civil Court dated 21.1.2014 are also set aside and the matter is remanded to the civil Court for impleading the applicants of application under section 12(2) CPC and then proceeding further in accordance with law. Resultantly the instant application filed under section 12(2) CPC is allowed. Judgment and decree dated 18.12.2015 passed in CR No. 484-P/2015 by this Court is set aside. Civil revision No. 484-P/2015 shall stands restored to its original number and same shall also be deemed to have been allowed to the effect that judgment and decree dated 13.5.2015 passed by learned Additional District Judge-IX, Peshawar is set aside. Similarly judgment and decree dated 21.1.2014 passed by learned Civil Judge-XIII, is also set aside. As a result, thereof suit filed by respondent No. 1 i.e. bearing No. 161/1 filed before learned Senior Civil Judge, Peshawar on 30.7.2011 titled Mst. Amina Begum..vs..Taj Ud Din Shinwari and 09 others, shall stands restored where the applicants of application under section 12(2) CPC shall be impleaded on the panel of defendants. On appearance before learned civil Court respondent No.1 i.e. plaintiff of the suit shall submit an amended plaint before the civil Court and the matter shall further be proceeded in accordance with law.