' Faqir Muhammad Khan and 18 others (claiming to be successors-in interest of one Ghulam Khan) instituted on 5-10-1987 Suit No, 679/1 versus Mst. Ghulam Elahi and 37 others (defendant No, 38 was pro forma) for grant of decree of declaration of title in the suit agricultural land consisting of sufficient numbers of Khatas and Khasras according to the record-of-rights of 1981-82 approximately land measuring 200 Kanals (according to the learned counsel for the petitioners) of village Mankarai, Tehsil and District Haripur and the decree dated 5-7-1977 in Civil Suit No, 32/1 of 1977 was challenged and Mutation No, 6469 attested on 18-1-1978 on the basis of the decree dated 5-7-1977 was also challenged and other mutations arising out of the decree dated 5-7-1977 were also challenged and prayed to be cancelled. Written statements were filed, issues were framed and on 9-2-1989 the statement of Patwari Halqa was recorded. It seems that because of large number of the defendants, applications were made for bringing legal heirs of the deceased from time to time and their services were affected according to the procedure also from time to time On 2-1-1990 an application was filed on behalf of the defendants for dismissal of the suit which was replied to and arguments were addressed on the same. Learned Judge of the trial Court by an order dated 18-4-1990 came to the conclusion that the decree of Civil Court in Suit No,32/1 has been challenged, therefore, application under section 12(2), C.P.C. Is to be instituted and the suit was not competent and thus the suit of the plaintiffs/petitioners was dismissed. The learned Judge of the appellate Court on appeal by a judgment dated 3-12-1991 upheld the order dated 18-4-1990 of the learned Judge of the trial Court. The plaintiffs/petitioners have instituted this C.R. No,3 of 1992 on 8-1-1992.
2. Learned counsel for the plaintiffs/petitioners submitted that the suit of the plaintiffs/petitioners was not hit by the provisions of section 12(2), C.P.C. As neither fraud was pleaded nor misrepresentation was urged. Learned counsel contended that applications under section 12(2), C.P.C. Have limited jurisdictio-n, i,e, fraud, misrepresentation and want of jurisdiction and when a suit is based on other than these three factors then the same is to be decided as a suit. In this case the plaintiffs/petitioners have not urged all the the three factors of section 12(2), C.P.C. And, therefore, the learned Judge of the trial Court as well of the appellate Court misapplied the law in the suit of the plaintiffs/petitioners. It was next contended by the learned counsel for the plaintiffs/petitioners that after recording evidence in the suit the learned Judge of the trial Court if came to the conclusion that application under section 12(2), C.P.C. Was competent instead of suit then the plaint can be converted into an application under section 12(2), C.P.C. And decided according to evidence recorded in the case.
3. Learned counsel for the defendants/respondents contended that in para. 2 of the plaint the plaintiffs/ petitioners have specifically pleaded that the decree dated 5-7-1977 in Suit No, 32/1 of 1977 at the instance of Mst. Maryam Begum was without jurisdiction and, therefore, the suit of the plaintiffs/petitioners was not competent. Learned counsel further contended that conversion of the suit in an application in the instant case will result into miscarriage of justice vis-a-vis the legal rights held by the defendants/respondents, therefore, the order of the dismissal of the suit be maintained and if at all the plaintiffs/petitioners feel aggrieved then they shall file application under section 12(2), C.P.C. So that the rights of the parties are determined in accordance with the procedure and the law applicable in deciding the applications under section 12(2), C.P.C. It was pointed out by the learned counsel that the order passed on the application under section 12(2), C.P.C. Is of a different specie than that of order amounting to be a decree or a decree passed in the suit as the procedure of filing appeals and revisions will be under different provisions of the Civil Procedure Code.
4. Learned counsel for the parties pointed out to a judgment of the august Supreme Court of Pakistan in the case of Noorul Amin and another versus Muhammad Hashim and 27 others reported in 1992 SCM R 1744. Their Lordships have laid down in the circumstances of the eases instituted before the Courts of law as under:-- "With respect to the learned Judge in Chamber we are unable to accept the above reasoning. It is well settled, that all procedural laws are meant for advancing the cause of jutice and they cannot be made a vehicle of oppression to suppress the remedies. It is also well-accepted principle of law that Courts always lean in favour of adjudication on merit rather than stifling proceedings on technicalities. A cursory reading of the plaint in Suit No, 231 of 1986 instituted by the petitioners will show that it contained all the ingredients of section 12(2), C.P.C. Mere fact that it was described as a plaint and was registered as plaint could not deprive the Court of its jurisdiction to decide it as an application under section 12(2), C.P.C. If otherwise such jurisdiction was available to the Court under the law."
' The law laid down in this judgment of the august Supreme Court of Pakistan has dispelled the apprehension of the learned counsel for the respondents and clarified the procedural law applicable in such like cases. It is pointed out that the learned Judge of the trial Court who is seized of the case is yet to decide the question of jurisdiction or other factors as mentioned in section 12(2), C.P.C. The Court is to proceed in the matter of the case and if it comes to conclusion that the suit was not competent and the application under section 12(2), C.P.C. Was competent then the plaint can be converted into an application under section 12(2), C.P.C. And vice versa at any stage of the proceedings in the case till its final decision.
5. As a consequence of the above dictum laid down by the Supreme Court of Pakistan, the order dated 18-4-1990 of the learned Judge of the trial Court and the judgment and decree dated 3-12- 1991 of the learned Judge of the appellate Court are set aside and the case is remanded to the learned Judge of the trial Court for deciding the same in accordance with the judgment of the august Supreme Court of Pakistan. Parties are to bear their own costs.