' Respondent No,1 filed a suit against respondents Nos.2 to 9 claiming a declaration that he is the owner of suit land measuring 364 Kanals, 18 Marlas. The suit was filed on 16-3-1982. Respondents Nos.2 to 9 appeared through their attorney namely Sakhi Muhammad and conceded the suit. As a result of this concession, the suit was decreed on 5-6-1982. The petitioners on 19-6-1986 filed an application under section 12(2), C.P.C., praying that the said decree, dated 5-6-1982 be set aside.
Their main plea was that to the knowledge of respondents Nos.2 to 9, they had acquired the suit land from Mohsin Baig vide mutation No,354, dated 12-9-1979. Respondents Nos.2 to 9 had filed a suit challenging the said mutation, which was dismissed as withdrawn with permission to file a fresh suit on 24-4-1984. This suit, as per copy Exh.A.5, was filed on 16-6-1981. There is no mention of respondent No,1 or any agreement in his favour in the said suit. It was also averred that after the dismissal of the said suit a review petition was filed before the Deputy Commissioner, Gujranwala, who dismissed the same on 8-12-1985. An appeal against the said order was dismissed by the Additional Commissioner, Gujranwala Division, on 5-5-1986. In the said review petition or the appeal the agreement/sale in favour of respondent No,1 or the decree was not disclosed. All the respondents contented the said application. The learned trial Court framed the following issues:--- "(1) Whether the petitioners have got no locus standi to file the application? OPR.
(2) Whether the present application is barred by time? OPR.
(3) Whether the impugned order and decree has been obtained by fraud? OPA.
(4) Relief."
' The learned trial Court recorded evidence of the parties and dismissed the application vide order, dated 27-4-1988. The petitioners filed a civil revision against the said order, which was heard by a learned Additional District Judge, Gujranwala. He was of the opinion that the issues have. Not been correctly framed. Accordingly, he framed the following issues:--- "(1) Whether the petition under section 12(2), C.P.C., is time-barred? OPR.
(2) Whether the application under section 12(2), C.P.C., is not maintainable under the law? OPR.
(3) Whether the petitioners have no locus standi? OPR.
(4) Whether Mirza Mukhtar Beg died prior to Mutation No,354, dated 12-9-1979 of the suit land in favour of the petitioners, if so, its effect? OPR.
(5) Whether the earlier suit filed by the respondents Nos.2 to 9 has been dismissed on 24-4-1984 and their review petition and appeal in the revenue Courts have also been dismissed, if so, its effect? OPR.
(6) Whether the petitioners were necessary parties in the suit between the respondents resulting in the impugned order? OPA.
(7) Whether the impugned order, dated 5-6-1981 is based on misrepresentation, fraud and as such is inoperative against the petitioners and liable to be set aside? OPA.
(8) Relief."
' After the remand, the learned trial Court again took up the matter. Issues Nos.!, 2, 3, 6, and 7 were found in favour of the petitioners. As a result of the said findings, the application was allowed. It was further observed by the learned trial Court in its order, dated 21-1-1990, that it is restraining itself from recording a finding on issues Nos.4 and 5 as the matter shall be reopened and the said issues pertain to the merits of the suit, and it will decide the same after the trial of the suit.
2. Respondent No,1 feeling aggrieved filed an appeal against the said order of the learned trial Court. This appeal was lieard.By a learned Additional District Judge, Gujranwala. He took objection to the course adopted by the learned trial Court inasmuch as issues Nos.4 and 5 were left undecided. Without going into the merits of the case or the evidence on record, the learned Additional District Judge set aside the order, dated 21-1-1990 and remanded the case back to the learned trial Court with the direction to record separate findings on all the issues in the case.
3. Sh. Khalil-ur-Rehman, learned counsel for the petitioners argues that the appeal before the learned Additional District Judge was not competent. Further argues that in the circumstances of the present case and for the reasons stated in the order of the learned trial Court, the matter should not have been remanded. Finally argues that the learned Additional District Judge should have himself decided the issues, as it was no body's grievance that sufficient evidence to (sic) Ch. Muhammad Anwar Bhindar, learned counsel for the respondents argues that in case the appeal was not competent before the learned Additional District Judge, then it will be deemed that it was a revision and in case it is to be deemed to be a revision, then the present revision before this Court would not be competent being a second revision. He relies on the case of Mst. Noor Jahan v. Mst.
Roshan Jahan and 6 others (1994 SCMR 2265). Further contends that the order of the learned Trial Court was violative of the command of the Appellate Court remanding the case to it with the direction to decide the issues formulated by it vide order, dated 9-3-1989.
4. I have gone through the records placed on the file of this civil revision with the assistance of the learned counsel for the parties. I find that the objection as to the competency of the appeal was not taken before the learned Additional District Judge. However, the objection is stated in the memo of revision and has been urged at the bar by the learned counsel. The objection raises .a question of law and as such, I am entertaining the same. Under the Code of Civil Procedure it is a decree defined in section 2(2), which is appealable. Apart from a decree section 104, C.P.C., contains a list of orders, which are appealable. The section also contains a note that no other orders apart from those as expressly provided in the body of the Code or by any law for the time being in force shall be appealable. A perusal of section 2(2), section 104, Order 43, Rule 1, C.P.C. And other provisions of the Code would show that an order under section 12(2), C.P.C., has neither been included in the definition of a decree nor has an appeal been expressly provided against such order either in the body of the Cade or any other law for the time being in force. This being the position, I have to conclude that the order passed by the learned Trial Court on the petition filed by A the petitioners under section 12(2), C.P.C. Was not appealable before the learned Additional District Judge. This Court has taken the similar view in the cases of Munir Ahmad Khan and others v.
Sami Ullah Khan (1982 CLC 625), Nathu Khan v. Muhammad Rafiq and another 1987 CLC 1501 and Ahmad and another ,v. Additional District Judge, Sargodha and 2 others (PLD 1990 Lah. 425).
5. After having concluded that the appeal of respondent No,1 was not competent before the learned Additional District Judge, what remains to be resolved is as to the competency of the present civil revision. In my humble opinion, the case clearly falls within the four corners of section 115, C.P.C. The learned Additional District Judge has exercised the jurisdiction not vested in him by law. Section 115 empowers this Court to make such order in the cases as it thinks fit where the aforesaid fact stands established. Since the learned Additional District Judge had no jurisdiction to entertain the appeal, he had no lawful authority to interfere with the order passed by the learned trial Court in purported exercise of appellate powers. In short the impugned order is without jurisdiction and is accordingly declared as such.
6. So far as the arguments of learned counsel for the respondents to the effect that it should be deemed that the matter was dealt with as a revision by the learned Additional District Judge, I am afraid there is nothing on record to support the said assumption. The learned Additional District Judge was not even aware that the appeal was not competent and his judgment does not disclose any conscious efforts on his part to convert the proceedings into a revision and deal with it as such. On the other hand bare reading of the impugned judgment would show that he proceeded on the assumption that the appeal was competent, as would be evident from the phraseology used in the impugned judgment. Even if it be deemed as insisted by the learned counsel that the learned Additional District Judge took cognizance of the proceedings before him treating it as a revision, I am afraid there was no defect in the judgment of the learned trial Court, which fell within the mischief of section 115, C.P.C. The only defect pointed out is that the order of learned trial Court is violative of Order 20, Rule 5, C.P.C., (wrongly typed as Order 20, Rule 1, C.P.C. In the impugned judgment). One has only to go through the said provision of law to find that in fact the order of the learned trial Court do not suffer , from any such defect. The present was an application under section 12(2), C.P.C. The learned trial Court has found under issue No,7 that the judgment impugned before it was based on misrepresentation inasmuch as the fact that the present petitioners were claiming interest in the suit land on the basis of a transaction which had been a subject matter of civil as well as revenue litigation between the parties has been concealed. In my opinion this finding was sufficient to dispose of the application. I am also in agreement with the learned trial Court that to record findings on issues Nos.4 and 5. At present would be tantamount to deciding the main suit itself. I find that the order of the learned trial Court is not only legal but just and proper. For purposes of recording these observations, the present petition is treated a petition under Article 199 of the Constitution.
7. Before parting with this judgment. I may make a Rote here that section 12(2), C.P.C. Provides a remedy which before this enactment was availed of by means of filing a regular suit. A decree passed in such a suit, whether decreeing or dismissing the same, was a decree within the meaning of section 2(2), C.P.C., being the formal expression of an adjudication, which conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit.
The effect of the order passed on an application is similar to that of the. Decree which used to be passed in the suit. Under section 12(2), C.P.C., if the Court declares that the claim contained in the suit was fraudulent then the suit itself stands dismissed and wiped out. If one goes by the definition of the decree and appealable orders in the Code, even such an order will not be appealable. In view of the far reaching effects of an order which may be passed in an application under section 12(2), C.P.C., it is just, proper and necessary, at least one right of appeal musr be given to the aggrieved party by the Legislature by making necessary amendments in the Code. Reference may here be made to some orders which are appealable only in particular circumstances. For instance, an order under Order 9, Rule 13, C.P.C., whereby the Court refuses to set aside the decree is appealable, but if the decree is set aside, no appeal lies. Similar is the case with an order under Order 9, Rule 9, C.P.C. i,e, if the suit is restored, no appeal lies, but if the application is dismissed an appeal lies. The wisdom behind the said provisions is that in case of setting aside of a decree as also of restoration of a suit, the matter becomes alive and parties have a chance to answer each other's allegations and to lead evidence in support of their respective pleas, where after the Court decides the matter between them on the basis of said, evidence and the law applicable. As against that in case of an application under section 12(2), C.P.C., where under a variety of orders can be passed including the one referred to above, no right of appeal is available to an aggrieved party. A copy of this judgment be sent to the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad, and also to the Parliamentary Secretary for Law, National Assembly of Pakistan, Islamabad.
8. The civil revision is allowed.