' This revision petition filed under section 115, C.P.C. Calls in question the order dated 3-4-1995, whereby the petitioner's application filed under subsection (2) of section 12, C.P.C. Was dismissed.
2. The factual background as stated in the petitioner's application under subsection (2) of section 12, C.P.C. Is as follows. A suit was instituted by Muhammad Ibrahim and others against the Lahore Cantonment Cooperative Housing Society (petitioner herein) for restraining the defendants from asserting any right, title or interest in respect of land measuring 31 Kanals, 10 Marlas comprising Khasra No,54, measuring 21 Kanals, 13 Marlas Khasra No,682/71; measuring 4 Kanals, 11 Marlas Khasra No,683/71; measuring 4 Kanals, 11 Marlas and Khasra No,680/70 measuring 17 Marlas, Mauza Chung, Tehsil Lahore Cantt., District Lahore. The suit was contested on the plea that the Society was the owner in possession of the suit land on account of two sales effected on 17-8-1976 and 13-9- 1976. The plaint was rejected vide the order and decree dated 17-11-1992. The appeal thereagainst was dismissed on 18-1-1994 by the learned Additional District Judge. Civil Revision No,1594/94 challenging this decree is presently pending in this Court. Society also filed a suit on 23-10-:1988 that it was owner in possession of the suit land measuring 21 Kanals, 15 Marlas in Khasra No,54. This suit is still pending.
3. On 9-1-1992 an application under the Arbitration Act was moved in the case ''Mian Ahmed Din v.
Ch. Muhammad Ibrahim" for making award dated 7-1-1992 rule of the Court. On the consenting statement of Ch. Muhammad Ibrahim the award was made rule of the Court by Mr. Khaliq- uzZaman, Civil Judge on 12-1-1992. Subsequently, on 7-11-1993 civil suit was filed against the Society by Mian Ahmed Din claiming vacant possession of property measuring 6 Kanals bearing Khasra No,57. On inspection of the file pertaining to this suit the Society came to know about the passing of the aforesaid decree dated 12-1-1992 in the arbitration matter, which had been allegedly obtained collusively by Mian Ahmed Din on the consenting statement of Ch. Muhammad Ibrahim. It is in respect of this decree dated 12-1-1992 that the application under section 12(2), C.P.C. Had been filed by the petitioner, inter alia, on the allegation that the decree had been obtained collusively on the back of the petitioner and without impleading him as a party, regarding the property owned by the Society.
3. Mr. Muhammad Afzal Shad, Civil Judge, has dismissed the above application vide the impugned order passed on 3-4-1995. It appears from the impugned order that the learned Civil Judge was under the impression that the petitioner had also moved an application for temporary injunction under Order 39, Rules 1 and 2, C.P.C. Alongwith the main application under section 12 (2) C.P.C. He discussed the merits of the case with respect to the prayer for temporary injunction, in the following words:-- "The petitioner has alleged himself as owner of the disputed land and has contended that he has purchased the disputed land from one Abdul Latif. The learned counsel for the respondent has filed the copies of plaint and order regarding a Suit No,367/84 where Muhammad Abdul Latif, filed a suit for declaration regarding the disputed land wherein he has prayed that he may be granted a declaration to be absolute owner of the disputed land. This suit was dismissed by the Court. No appeal was filed by the aggrieved person against this order. The petitioner also filed, a writ petition in the Honourable Lahore High Court, Lahore ' which was dismissed as withdrawn. On the other hand, the respondent has produced the documents which reveals that he is owner in possession of the disputed land. The copy of Register Haqdaran Zameen, revealed that the respondent has been entered as owner of the disputed land. The petitioner has failed to prove his case a prima facie. The balance of convenience goes in favour of the respondent. The plaintiff will not suffer any irreparable loss. I, therefore, am of the view that the application for temporary injunction does not merit acceptance hence rejected."
' After rejecting the prayer for temporary injunction, he also dismissed the main application on the consideration that the petitioner did not have the cause of action to move the application because he was not a party to the proceedings in which the impugned decree had been passed. His conclusion in this behalf is reproduced below in extenso:-- "As discussed above, the petitioner has challenged the decree dated 12-1-1992, as third party and apparently it is clear that the petitioner has no concern with the disputed land. If he is owner of the suit land, he must defend his right on any plea available to him under the law. As the petitioner has no cause of action to bring this application. I, therefore, dismiss the application. Parties are left to bear their own costs. File be consigned to the record room after its completion."
4. Learned counsel for the petitioner has raised the following contentions:--
(i) The learned Trial Court has grossly misread the record in thinking that the petitioner had moved an application for temporary injunction under Order 39, Rules 1 and 2, C.P.C. Nc such application had been moved. Thus, according to the learned counsel, the impugned order has been passed without application of mind.
(ii) The view of the learned Trial Court that the petitioner being not party to the decree has no locus standi to challenge the same under section 12 (2), C.P.C. Is totally untenable in law and runs counter to the dicta of the Hon'ble Supreme Court in Ghulam Muhammad v. M. Ahmed Khan and 6 others (1993 SCMR 662) and Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586).
According to him a person, though not party to the suit can competently move an application under section 12 (2), C.P.C. If he is adversely effected by the decree/order collusively obtained by the parties to the suit/proceedings.
(iii) The learned Trial Court did not frame any issues nor called upon the parties to produce the evidence. On the contrary, under misapprehension of fact that a case for temporary injunction was before him unlawfully observed that the petitioner had failed to prove his case prima facie and dismissed the petition as well.
(iv) The title of the petitioner-Society had been established in the suit filed by Ch. Muhammad Ibrahim in 1994 in which the petitioner-Society was one of the defendants. Therefore, the arbitration agreement regarding the land in dispute falling in Khasra No,54 and the consequent decree holding that this piece of land was owned by Muhammad Ibrahim was a fraud which had been practised on the Court on account of collusive arbitration proceedings between Ahmed Din and Ch. Muhammad Ibrahim. The former claimed that he was vendee from the latter who consented this claim in Court without disclosing that the matter already stood adjudicated against Muhammad Ibrahim regarding this piece of land.
5. As against this, learned counsel for the respondents has submitted that the impugned order does not suffer from any jurisdictional or legal defect. He has placed reliance on Mst. Hamida Begum v. Muhammad Saleem (1988 CLC 2456) to contend that a stranger to the suit cannot file application under section 12 (2), C.P.C. And therefore, the Trial Court has rightly held that the present application was not competent. The learned counsel was unable to meet the contention raised by learned counsel for the petitioner that in fact no application under Order 39, Rules 1 and 2 for the grant of temporary relief was moved. However, he explained that though no separate application had been made, the prayer in the main application had been made for suspension of the decree. According to him, this factual misapprehension of fact on the part of the learned Trial Court was of no consequence because while referring to the application for temporary injunction, he in fact meant to refer to the prayer for temporary injunction in the main petition.
6. After hearing the learned counsel for the parties and considering their contentions enumerated above, I am of the view that this revision must be accepted and the to the learned Trial Court for deciding the application of the petitioner, moved under section 12 (2), C.P.C., after giving opportunity to the parties to lead evidence in support of their respective pleas on facts.
7. The learned Trial Court appears to have non-suited the petitioner on the short ground that being a stranger to the proceedings in which the impugned decree had been passed, it had no locus standi to move the application under section 12 (2), C.P.C. In Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586) Hon'ble Supreme Court has found that a person who was not party to the suit can also move an application under section 12 (2), C.P.C., if his rights have been jeopardized by the decree obtained by fraud or misrepresentation. Their Lordships of the Supreme Court affirmed the view of the Peshawar High Court taken in Abdur Rauf and others v. Abdur Rahim Khan (PLD 1982 Pesh. 172) and held as under:-- "It is obvious that in section 12 (2), C.P.C. The word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the law-maker been to restrict the right of filing the application under section 12 (2), C.P.C. Only to the judgment-debtor or his successor-in-interest or a person who was party thereto then nothing was easier for the law- maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustated because then a person not being a judgment-debtor or his successor-ininterest or a party to the suit although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents."
It is thus clear that in order to invoke the jurisdiction of a Court under subsection (2) of section 12, C.P.C. For reversal of the judgment/decree/order on the ground of fraud, misrepresentation or want of jurisdiction it is not necessary that only the parties to the suit/proceedings have the necessary locus standi. Any person whose rights and interest have been adversely affected by the passing of the decree obtained by fraud or misrepresentation or want of jurisdiction can come to the Court.
However, only such a person is competent to move the Court whose legal rights have been jeopardized by the impugned decree/judgment/order.
8.In view of the aforementioned legal position it will have to be seen whether the learned Trial Court was justified in dismissing the application at the preliminary stage by merely observing that the petitioner had no prima facie case and that it could prove its title in the suit which it had, filed against Ahmed Din. The petitioner in the application moved under section 12(2), C.P.C. Had taken up definite stand that the suit "Ch. Muhammad Ibrahim and others v. Lahore Cantt. Cooperative Housing Society and another" filed on 21-7-1988 restraining the defendants from asserting any right, title or interest in the land inter alia comprising Khasra No,54, was finally dismissed. This suit, according to para. 4 of the application under section 12 (2), C.P.C. Was contested by the Society on the assertion that the Society was owner in possession on account of sale through two sale-deeds registered in 1976. The arbitration agreement and the consequent award and the impugned decree are in respect of six Kanals in Khasra No,54. The plea of the petitioner before the Trial Court, therefore, was that in getting a decree from the Court by adopting arbitration proceedings without making the petitioner-Society as a party therein, the rights and interest of the Society have been jeopardized and in fact on the basis of this decree a suit has been filed by Ahmed Din against the Society for possession of the land measuring 6 Kanals. If the facts mentioned above are found to be correct then the petitioner Society despite the fact that it was not a party to the decree passed in consequence of arbitration proceedings has the necessary locus standi to move application under section 12 (2), C.P.C. Because a cloud has been cast on the rights and interest of the Society due to the passing of the impugned decree. It may be mentioned at this stage that the application moved by the Society was duly supported by an affidavits worn by the Secretary of the Society in support of the contents of the application, therefore, the above and other facts stated in the application could not be ignored unless on cogent material before the Court it was found that the factual assertions were incorrect, that the suit filed by Muhammad Ibrahim did not include the land which was the subject-matter of the arbitration proceedings and the land which was included in the impugned decree. It appears that the learned Trial Court did not give opportunity to the parties to lead evidence and yet held that the petitioner had no cause of action. Ground (i) of the application under section 12(2), C.P.C. Moved by the petitioner-Society reads as follows:- "(i) Valuable rights of the applicant-Society being involved in the suit land, proceedings taken adversely in respect of the person and property of it without impleading it as party were without jurisdiction inasmuch as it is amounted to deprive a bona fide owner in possession of land in question of its valuable property without hearing it which is against substantive rules of justice and against principles of natural justice."
' The property rights of the petitioner-Society had been alleged in clear terms before the learned Trial Court and, therefore, it was duty of the Court to pay serious attention to adjudicate the dispute on merits.
For what has been stated above, the revision petition is accepted, the impugned order dated 3-4- 1995 is set aside and the case is remanded to the learned Trial Court for deciding afresh the application under section 12(2), C.P.C. Moved by the petitioner-Society, in accordance with law. This application shall be decided by the end of this year. The parties are, however, left to bear their own costs.