The facts are that a pre-emption suit filed by Bati respondent against Mst. Sakina Bibi, the vendee (respondent No. 3 herein) before the Collector, on the plea that the land comprised in his tenancy, was decreed in his favour on 22-7-1981. Parallel proceedings to pre-empt the same sale were commenced by Muhammad Latif, petitioner in the civil Court. This suit is reportedly pending and Bati has moved an application to be impleaded as a party therein.
2. The cause giving rise to the instant writ petition was initiated by the petitioner by filing an application under section 12(2), C.P.C. Before the Collector for setting aside of the decree, dated 27- 7-1981 on the ground that it was procured by fraud and misrepresentation. This application came up for consideration before the Collector on 13-6-1983, and he adjourned the matter to 21-6-1983 for framing of issues. Bati, filed a revision against this order but the learned Addl. Commissioner, dismissed the same in limine as in his opinion the order, dated 21-6-1983 not being final order, the revision was not competent. This dismissal was then called in question by the respondent through a second revision before the Board of Revenue, The learned Member accepted the revision petition by his order, dated 12-2-1985, impugned through this writ petition; the operative part whereof is reproduced below:-- " ....Even though no limitation is prescribed for filing application under section 12(2), C.P.C. But the Courts are expected to ensure that the provisions of this law are not put to perverse use. In the instance case, the respondent Muhammad Latif delayed to avail of the legal remedy available to him for which the learned counsel for the respondent has offered no explanation. Section 12(2), C.P.C. Is not an alternate to appeal but has been offered as an immediate remedy in cases where the decrees may have been obtained by misrepresentation or fraud. Here, no such case seem to halve been made out, nor was this remedy applied with expediency. I would, therefore, hold that according to the facts of the case, no justification existed for the A.C.E Collector to have entertained the application under section 12(2), C.P.C. In respect of the decree passed on 22-7-1981 ...."
3. I have heard the learned counsel for the parties. On behalf of the petitioner, two formidable contentions have been raised. Firstly, the Collector's order being an interlocutory order could not be subjected to revision and secondly, the application under section 12(2), C.P.C., is covered by Article 181 of the Limitation Act, which provides a period of three years.
4. There is much force in these contentions. The order, dated 13-6-1983 neither constitute any verdict on any issue nor an adjudication upon any material point, concerning the application. In fact it does not determine any matter, relevant to the disposal of the application. The case has merely been adjourned thereby, for formulation of issues, which can include the respondents' objection to the maintainability of the application, if any. Such on interlocutory order which does not deal with any substantial question in controversy much less to record any findings is not open to revisional jurisdiction.
5. The learned counsel for the respondents, however, has vainly endeavoured to canvass that the revisional jurisdiction under para. A 25(7) of the Land Reforms Regulations empowering Board of Revenue to examine the legality and propriety of any order passed by and proceedings pending before, the subordinate Revenue authorities, is extendable to cover the order, dated 13-6-1983.
6. I am unable to agree to such a contention. The 'order' envisaged by sub-para. (7), must be proceeded by judicial consideration of the controversy between the parties followed by an adjudication thereof. There is no such adjudication in the instant case and the order of the Collector is merely formal in character and simply adjourned the case to some other date. As regards the term 'proceedings' according to the impugned order itself section 12(2), C.P.C., provides a remedy for removal of a decree obtained by fraud. The learned Member, Board of Revenue has not non-suited the petitioner for the reason that the application under section 12(2) ibid, is misconceived and does not lie, but on the ground, that it was filed at a belated stage. It, therefore, cannot be said that an illegality floated at the surface of the record, in the proceedings started on the basis of the application under section 12(2) ibid, to justify interference through revision. The assumption of jurisdiction by the learned Member, Board of Revenue was thus uncalled for.
7. I now proceed to deal with the question of limitation. It is not disputed that no period of limitation is specifically provided for an application under section 12(2) ibid, if no Article of the Limitation Act, is applicable, the residuary Article 181 shall apply. It provides a period of three years and the limitation starts from the date the right to sue accrues. The application in question was directed against the decree, dated 22-7-1981 and was filed on 8-12-1982. Obviously, it was within the period of limitation. It is well-settled that a party can seek his remedy, even on the last day of limitation. As the application was instituted within the statutory period of limitation, the delay, if any, in its submission, did not furnish a valid reason for its rejection. The order of the learned Member, Board of Revenue, on this score, too, cannot be sustained.
8. It may be observed that in the impugned order the learned Member has made a passing observation that no case, as to the commission of fraud and misrepresentation, was made out. But, fraud and mis--representation, are questions of facts and since no inquiry was held by any of the Tribunals below in this behalf, and the impugned order does not make mention of any material on which such observation is rested, no legal sanction can be attached to such an observation.
9. For the foregoing reasons, this writ petition is accepted and the impugned order declared to have been passed without lawful authority. The parties are directed to appear before the Collector on 20-11-1985, who, shall proceed in the matter in accordance with law. The costs of this writ petition shall be borne by respondent No. 2.