' The present revision petition is the result of an order dated 11-10-1993 of the learned trial Court vide which an application under section 12(2), C.P.C. Of the petitioners, for recalling/rescinding of the judgment and decree dated 25-2-1987 of the Court concerned obtained by the respondent, was dismissed.
2. The decree dated 25-2-1987 mentioned above was obtained by the respondent by filing declaratory suit against the predecessor-in-interest of the petitioners, namely, Bashir Hussain Shah, to the effect that he is in possession of land measuring 76 Kanals and 11 Marlas which he has purchased along with an equal share of the brother of Bashir Hussain Shah for Rs,84,150 vide agreement dated 30-5-1982. Rs,24,150 were received in cash while the rest of amount of Rs,60,000 was received by the said Bashir Hussain Shah and his brother Nazir Hussain Shah on 7-8-1982. This suit was dismissed in default on 15-2-1983 and subsequently an application for restoration of the suit was filed on 15-2-1983. The notices were issued to Bashir Hussain Shah in the said application and vide order sheet No,5 dated 16-7-1983, respondent was directed to file correct address of said Bashir Hussain Shah and also registered envelope be filed in the Court for serving through a registered post notice. The respondent instead of complying with the orders of the Court submitted an application for advertisement in the newspaper which was done accordingly in the newspaper `Japan Numa' Lahore. After the publication on the next date of hearing Bashir Hussain Shah was proceeded ex parte and the case was fixed for recording of the ex parte evidence and thus after recording ex parte evidence, a decree as prayed for, was granted in favour of the respondent. It may be noted here that a mutation No,480, dated 12-8-1982 was attested in, favour of the respondent in respect of share of Nazir Hussain Shah of property measuring 76 Kanals and 10 Marlas. It is also pointed out here that Bashir Hussain Shah was involved in a case of abduction in which respect a criminal case was registered against him on 4-10-1982 and from which date he was absconder and was arrested on 16-5-1984 and was granted bail on 24-6-1984. The decree which had been challenged under section 12(2), C.P.C. Was passed on 25-2-1987. Bashir Hussain Shah died on 17-8-1988. The mutation in consequence of the decree was entered on 8-12-1988 and was attested on 13-2-1990. The petitioners obtained Tard' of the property on 2-5-1991 and alleged, the obtaining of knowledge on this date i,e, the date of obtaining of the Pard' and then instituted the instant application under section 12(2) on 13-51991. This application was contested by the respondent. As a result of which following issues were framed:-
(1) Whether the applicant has got a locus standi and cause of action?
(2) Whether application is within time?
(3) Whether decree dated 25-2-1987 in Suit No,131/1 is fraudulent, collusive and result of misrepresentation?
(4) Whether applicant is entitled to the relief sought by him?
(5) Relief.
' The parties adduced their evidence and the learned trial Court after hearing the parties, dismissed the application of the petitioner by holding it as not within time and also observing that the suit questioned therein was not the result of misrepresentation, fraud or collusion. The petitioner felt aggrieved then approached this Court in its revisional jurisdiction.
3. The learned counsel for the parties were heard and the material available on record was perused.
4. If a look is made over the proceedings of the lower Courts initiated and conducted at the instance of respondent, then one cannot escape to arrive at a conclusion that the conduct of the respondent was as such which leads one to believe that he had not come to Court with clean hands or he had not concealed the facts from the Court and thus become able to obtain a decree on the basis of misrepresentation and fraud. As is evident from the facts narrated above that the suit was instituted against Bashir Hussain Shah on 7-11-1982 when he was already an absconder and was not available at his abode as a criminal case had already been registered against him on 4-10-1982. When the said suit was dismissed in default on 15-2-1983 and when the application for its restoration was submitted, then instead of complying with the orders of the Court dated 16-7- 1983, by submitting correct address of Bashir Hussain and also filing registered envelope for the issuance of notice to him, he adopted different course by submitting an application to the Court for publication in the newspaper and kept concealed the fact of registration of criminal case against Bashir Hussain Shah and his abscondance and even the publication was obtained from the Court in a newspaper of limited circulation having its place of publication in a different province at Lahore and thus the normal course of service of summons or process was not adopted. After the acceptance of the application for restoration of the suit, then no fresh proceedings for issuance of summons etc. Were adopted and proceedings for recording of evidence were initiated in the main suit. Had Bashir Hussain Shah been properly served and had he represented the suit properly, then the petitioners would not have been able to make the Court believe on their allegation of the payment of the remaining amount of Rs,60,000 on 7-8-1982 as when the statement of the attorney of the respondent was recorded in the Court, he in unequivocally words stated that after the release of Bashir Hussain Shah from jail, the payment of Rs,10,000 was made to him and his release date is 24-6-1984. The other most important factor which goes against the respondent is his nonappearance in the Court as a witness though he was present out of the Court during prosecution of the case as it is evident from the statement of his attorney which shows that he was having an apprehension in his mind that he would be deposing on oath and would be subjected to cross-examination and in such a situation he would not be able to stand the test of cross- examination or would not be able depose falsely by taking an oath at the time of his examination as a witness and by deposing otherwise i,e, disclosing the true fact, then he would be loser.
5. So, it is quite apparent from the above discussions that the decree obtained by the respondent was the result of concealment of facts and misrepresentation. Though the learned counsel for the petitioners also contended that the deed which has been relied upon by the respondent in his main suit is an agreement to sell and declaratory suit was incompetent and the suit for specific preface should have been brought.
6. As with regard to the limitation, the petitioner alleges that after obtaining of the Pard Jamabandi' on 2-5-1991 they got knowledge of the mutation attested in consequence of the said decree and application was instituted on 13-5-1991, is within time if the period is computed from the date of knowledge. Their absence of knowledge as contended by their counsel was due to the keeping the facts secret from the petitioner as decree was obtained on 25-2-1987 and was attested on 13-2- 1990 after about three years of the date of decree and even the mutation was attested in a different place i,e, Village Korai instead of attesting the mutation in the same Village i,e, Gomal Kalan to which the property relates. So, all these acts of the respondent, in addition to keep the whole transaction and bargain secret from the petitioner, were manipulated to have a plea of limitation and on the face, the recourse of the petitioner to the Court in such a clandestine manner is also a pointer to his fraudulent act. The period of limitation for filing application under section 12(2) is covered by Article 181 of the Limitation Act for which the period is three years and the present suit is quite within time.
7. The learned trial Court though reproduced the major portion of the statement of the petitioners' witnesses but wrong conclusion was deriving from the same by misreading it, for example, when the witness of the petitioners states that the property has been transferred to the respondents though was taken against him but at the, same time it was not noticed that the statement was recorded after sufficient time of the transfer of the said property fraudulently, through a decree and mutation and which was under challenge in the said application. So, his statement to this effect that the property has been transferred to the respondent should not be considered against him.
8. As a result of my above discussion, the application of the petitioner filed under section 12(2), C.P.C. Is accepted, the judgment and decree impugned therein is set aside and as the main consideration for setting aside of the decree was keeping the whole affair secret by the respondent from the petitioners and obtained a decree on their back, so the proper course would be to restore/revive the suit and send the case back to the trial Court in order to afford an opportunity to the petitioner to contest the suit.
' Thus on revival/restoration of the main suit which is sent back to the trial Court for re-trial by affording an opportunity to the parties to prosecute/advance their cases.