' WALI MUHAMMAD KHAN, J.--The entire land situated in the estate of Village Tarbela was acquired by Government for the construction of Tarbela Dam including the suit land bearing khasra numbers 1006 to 1013 measuring about 700 kanals. Abdul Ghafoor Khan and others, respondents herein, made a reference to the Collector for enhancement of the compensation regarding improvement of the suit land which was ultimately referred to the Court for determination under section 18 of the Land Acquisition Act, 1894. The learned Court (Additional District Judge Haripur) after obtaining reply from the opposite side, including the Government of N.-W.F.P., (petitioner herein), and recording evidence which was produced before him by the parties, declared the kind of the land as fruit garden and `chari abi' and determined the compensation accordingly. The Government of N.-W.F.P., petitioner herein, filed RFA against the aforesaid order of the Referee Judge which was registered as RFA No, 57 of 1981 and notices were issued to the opposite side. The service was not yet complete when the appellants (petitioners herein), submitted application (CM No, 227 of 1984) for permission to produce additional evidence under Order 41, Rule 27, C.P.C. Read with section 151, C.P.C.
2. An other application for the amendment of the written statement was also filed by the appellants on 24-11-1985 which was registered as C.M. No, 479/85 and the notices of both these applications were issued to the respondents. The appeal as well as the aforesaid applications came up for consideration before a Division Bench of this Court on 24-6-1986. The learned counsel for the parties gave the following statement before the Court:-- "We both agree that in the peculiar circumstances of the case the appeal should be kept pending in this Court and while dismissing the applications for producing additional evidence and filing amended written statement, the appellant may be permitted to approach the trial Court with an application under section 12(2) C.P.C. For setting aside the impugned decree on the ground that it was without jurisdiction and obtained by fraud, misrepresentation and suppression of facts."
' In view of the statement of the learned counsel for the parties the Court dismissed both the applications and directed the appellant and the petitioners to file application under section 12(2), C.P.C. Within one month and the trial Court was directed for the expeditious disposal of the matter and ordered the stay of the appeal till the disposal of the said application under section 12(2), C.P.C.
3. The Government of N.-W.F.P., the Land Acquisition Collector and WAPDA through Chairman filed application under section 12(2), C.P.C. Before the Additional District Judge which was registered as 35/6 of 1986 and proceedings commenced according to law. The same was seriously contested by Abdul Ghafoor etc. Who in their written statement raised the plea of limitation, lack of cause of action and maintainability of the suit. It was also specifically alleged in reply to para 3 of the petition that in the existence of the appeal, the original order of the Referee Judge dated 8-10-1980 had not attained finality and in consequence no application under section 12(2), C.P.C. Could lie. A separate application for determination of the preliminary objection was also filed and the learned trial Court vide its order dated 12-10-1986 held that the application was within time under Article 181 of the Limitation Act; that the application under section 12(2), C.P.C. Was competent in view of the clear permission of this Court referred to above. Yet another application was filed by the respondents regarding the maintainability of the application which was also rejected by the trial Court vide its order dated 10.2-1988. The subsequent order was challenged before this Court through their Revision Petition No, 49 of 1988 but the same was withdrawn vide order dated 6-11- 1988 with an observation by this Court that the matter shall be open for challenge in appeal/revision against the final order/judgment whenever delivered.
4. The petitioners produced some evidence in the case before the trial Judge and sought permission to produce additional witnesses not named in the list of witnesses and therefore applied for permission to amend the list of witnesses and production of additional evidence. This naturally caused resentment to respondents as the acceptance of the prayer was bound to prolong the proceedings and ultimately, the delay in the payment of the compensation to the respondents, as the operation of the impugned order regarding the enhancement of compensation had been suspended by this Court. Since RFA No, 57 of 1981 was also pending in this Court, specific direction had also been issued to the trial Court vide order dated 20-11-1989 for disposal of the case within one month. The respondents therefore moved another application on 16-1-1990 to the trial Court praying for the dismissal of the application under section 12(2) C.P.C. On the ground that the order being sub judice before the appellate Court and having not attained finality cannot be challenged under section 12(2) C.P.C. The learned trial Judge after hearing arguments of the learned counsel for the parties on the said application, dismissed the application under section 12(2) C.P.C. Vide his order dated 24-1-1990. Hence the instant revision petition.
5. Muhammad Nawaz and others claiming to be interested in the suit property also filed an application under section 12 (2), C.P.C. Before the trial Court which was registered as 37/6 and proceedings therein continued alongwith the application filed by the Government and registered as 35/6 above. The said application was also dismissed by the learned trial Judge through the said order dated 24-1-1990 and a separate revision petition registered as 39/90 has been filed by Mohammad Nawaz and others. This order will dispose of both the Civil Revisions Nos. 46/90 and 39/90.
6. We have heard Maulvi Sirajul Haq Advocate learned counsel for the petitioners in Cr. No, 46/90 and Taj Mohammad Khan Advocate learned counsel in Cr. No, 39/90 and also Mr. Fida Mohammad Khan Advocate learned counsel for the respondent and have perused the record of the case with their assistance.
7. The learned counsel for the petitioners submits that the legal objection to limitation and maintainability of the application under section 12 (2), C.P.C. Had earlier been adjudicated upon by the then learned Additional District Judge and that the trial Judge exceeded his jurisdiction in deciding the said questions de novo particularly when he being not the Judge who had passed the earlier orders had no power to review the earlier order under Order 47, rule 2, C.P.C. That this Court with the consent of the learned counsel for the parties had permitted the filing of the application under section 12 (2), C.P.C. And the impugned order amounts to contempt of this Court in so far as it declined to entertain the said application; that the High Court in its revisional order dated 6-11- 1988 while dismissing the revision petition had left legal question open for decision at the time of hearing of the appeal/revision against the final order in the matter which was to be honoured by the trial Judge and finally that the impugned order is manifestly illegal and materially irregular.
8. The learned counsel for the respondents on the other hand contended that the original order entitling the respondents for compensation of the suit land was passed on 8-10-1980 and the petitioners have been resorting to delaying tactics on one pretext or the other in order to deprive the respondents from the fruits of the decree passed in their favour by the Referee Court. He further submitted that they were party to the proceedings and had ample opportunity to rebut the evidence produced by the opposite side before the Referee Court. However, according to him, the plea of fraud was raised by the petitioners in the R.F.A. No,57/81 and the appellate Court will definitely take the same into consideration while disposing of the appeal in question. Lastly he emphasised that the provision of section 12 (2), C.P.C. Come into play when finality is attained by the judgments and decrees and only the Court which passed the final judgment/decree or order is invested with the jurisdiction to entertain the application under section 12 (2), C.P.C. And consequently the entire proceedings before the trial Court were without jurisdiction.
9. We have given our anxious consideration tc the arguments advanced by the learned counsel for the parties.
10. The arguments of the learned counsel for the petitioners prima-facie appear attractive and in the normal course we could face no difficulty in ordering the trial Court to proceed with the case and pass final order in the matter but keeping in view the chequered history of the case, the effect of prolongation of decision of the instant dispute on the rights of the parties we have considered it proper to avoid technicalities and consider the impugned order in the light of the statutory provision of law and its legality and propriety. For the proper appreciation of the controversy in hand it is necessary to reproduce the provision of section 12 (2), C.P.C.
"12 (2), C.P.C. Where a person challenges the validity of a judgment decree or order on the plea of fraud, misrepresentation 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".
A careful reading of the above provision of law makes it abundantly clear that separate suit to challenge the validity of a judgment decree or order on the plea of fraud, misrepresentation or want of jurisdiction has been barred and instead the aggrieved person is provided with a remedy to seek his redresses by making an application to the very Court which passed the final judgment, decree or order. Through the insertion of this provision of law the intention of the Legislature was to do away with the protracted procedure of filing a separate suit for the purpose and then to file appeal and revision against the judgments delivered in such suits. The insertion of the word "Court which passed the final judgment, decree or order and not by a separate suit" must have been with the sole purpose that the trial Court should not sit on the judgment of the final Court and declare the same as having been obtained through fraud, misrepresentation or want of jurisdiction. Under section 96 of the Civil Procedure Code appeal is allowed against every decree passed by any Court exercising original jurisdiction to the Court which is authorised to hear the appeal from the decision of such Court and the appellate Court is empowered to maintain the decree, set aside the same or order retrial of the matter. In other words the entire dispute becomes sub-judice before the appellate Court till a final judgment is delivered by the appellate Court. Admittedly the order of the Referee Judge dated 8-10-1980 is sub-judice in the R.F.A. No,57/81 before this Court and is not final at the moment so long as the appeal is not finally decided and final judgment and decree in the appeal is not passed. We are therefore convinced that the entire proceedings before the learned trial Judge right from the filing of the application under section 12 (2), C.P.C. By the petitioners were much ado about nothing and without jurisdiction. The order of the learned trial Judge is in consequence perfectly valid and in accordance with the mandatory provisions of law.
11. No doubt this Court vide its order dated 24-6-1986, on the statement of the learned counsel for the parties allowed filing of the application under section 12 (2), C.P.C. Within one month but that per se cannot confer jurisdiction on the trial Court when it lacked jurisdiction under the statutory provisions of law. This aspect of the case apparently was not considered by this Court at the time of granting permission to file application under section 12 (2) C.P.C. As the order was passed simply on the statement of the learned counsel for the parties without determining the legal aspect of the case and the same could not legally preclude the respondents, to raise the objection to the jurisdiction of the trial Court.
12. The plea of limitation, in view of our conclusions above, has lost its force because the question of limitation will come into play when proper application before a proper forum at the proper time is made. Any how if it is assumed that the trial Court had the jurisdiction and was the final Court even then the impugned order holding the application under section 12 (2), C.P.C. As time-barred is not assailable, inasmuch as the application was undisputedly filed beyond 3 years under Article 181 of the Limitation Act which is applicable in such like cases. Since the petitioners have raised the plea of fraud they could avail of the provision of Article 95 of the Limitation Act which provides 3 years limitation to suit for setting aside decree obtained by fraud or for other relief on the ground of fraud and the terminus a quo thereof is 3 years when the fraud becomes known to the party wronged.
The plea of fraud was raised by the petitioners in the grounds of appeal and computing the period of 3 years from the date of filing the appeal the application under section 12 (2), C.P.C. Was hopelessly barred by time.
13. The learned counsel for the petitioners argued with vehemence that fraud vitiates all solemn acts and in support of his arguments cited the authority of then Dacca High Court in case of Muhammad Idris Khan v. Haji Erfanuddin PLD 1958 Dacca 132 and the relevant dictum is reproduced below:-- "(a) Fraud--Order obtained by practising fraud on Court--Court has inherent power to set it right.
' No order obtained by practising fraud on the Court and on the parties should be allowed to stand on record. If it be allowed to stand, the Court will be a party to fraud and the parties will be encouraged to commit fraud which cannot be allowed under any circumstances."
' There is no cavil with the proposition emphasised by the learned counsel for the petitioners. The plea of fraud has already been raised by the petitioners in the grounds of appeal in R.F.A. No, 57/81 and will definitely be considered by this Court while giving its decision in the main appeal. The appellate Court has powers under Order 41 Rule 27 to record additional evidence if it feels the necessity for the same in spite of the rejection of the application for the same purposes by the petitioners vide order dated 24-6-1986.
14. As regards the Revision Petition No, 39/90 suffice it to say that the petitioners in this revision petition accepted the award and did not choose to make a reference to the Court and consequently they have no right to challenge the order dated 8-10-1980 passed on the reference filed by Abdul Ghafoor and others on the ground of fraud and misrepresentation as they are not the aggrieved persons from the said order. Their application under section 12 (2), C.P.C. Was I also rightly rejected by the trial Court on this ground.
15. The upshot of the above discussion is that both the revision petitions are dismissed with no order as to costs.