' This judgment will decide Civil Revision No, 1353-D of 1984 which brings under-challenge judgment, dated 9-7-1984 of the learned District Judge, Khushab, where by appeal of the petitioner against judgment, dated 9-3-1983 was dismissed.
2. The facts out which this revision has arisen are that respondent No, 1 (Muhammad Ramzan) was owner of land measuring 563 Kanals 19 Marlas. The ownership comprised of land measuring 404 Kanals, 4 Marlas in Khewat No,140 and land measuring 159 Kanals 9 Marlas in Khewat No, 763.
Petitioner (Sultan) purchased land measuring 100 Kanals from Muhammad Ramzan (respondent No,1) out of his holding i,e, 563 Kanals, 19 Marlas vide registered Sale Deed dated 5-1-1962. He has claimed that the physical possession was delivered and 7-1/2 Killas of land purchased under cultivation. Mutation was attested on 18-9-1964 on the basis of aforesaid Sale Deed. Later, mutation was reviewed and cancelled on 9-9-1970 which review order according to the petitioner was collusively obtained. This review was made on the ground that the mutation was allegedly violative of Martial Law Regulation No,64 of 1959. Consequently, the petitioner was entered as tenant of respondent No,1, in the Revenue Record, who proceeded to file a suit for ejectment. At this stage, the petitioner filed a suit for declaration and injunction to the effect that he was owner-in-possession of land measuring 100 Kanals and that the alleged review proceedings were collusive and inoperative in law. The suit was decreed ex parte on 14-6-1973. In view of the decree granted in favour of the petitioner, the suit for ejectment filed by respondent No,1 was dismissed.
' Respondent No,1, filed a suit for declaration to challenge the ex parte decree, dated 14-6-1973 on the grounds of fraud and misrepresentation and also claimed to be owner-in-possession of the land of 406 Kanals 10 Marlas in Khata No,140. The suit was dismissed on 28-2-1979. In appeal, the decree was set aside on 2-7-1979 and the case was remanded for fresh trial after additional issues.
4. In post remand proceedings, the suit was disposed of on the basis of findings on Issue No,3.
5. In appeal, the learned District Judge did not interfere with the view taken by the learned Civil Judge on Issue 3.
6. Learned counsel for the petitioner argued that both the Courts below ignored the fact that the sale in favour of the petitioner was effected through a registered sale-deed which was never cancelled by any decree of the Court and since the sale was not in issue, the same could not be avoided without the payment of compensation. Learned counsel submitted that the Courts below also misread the record and illegally assumed that the review was made by the Land Commissioner though in point of fact, the review had been made by the Collector on land side which proceedings were under the Land Revenue Act. It was added that in any case, the Civil Courts were not denuded of its powers to examine if the authority had acted in accordance with the provisions of law of which it was the creature or it has travelled beyond jurisdiction. Reference can be made to 1974 SCM R 356, to argue that the Civil Courts are the Courts ultimate jurisdiction and have the jurisdiction to examine if the order was in excess of authority or within the scope of jurisdiction vested in the authority under the law. Learned counsel further contended that before 1980, the suit to challenge a decree was competent but its scope was not beyond section 12(2), C.P.C. And at best in such like proceedings, the Court could only examine if the decree was the result of fraud or without jurisdiction and if the Court reaches the conclusion that the decree was a result of fraud and without jurisdiction then the suit could not be dismissed but the proceedings in the suit would revive on the annulment of the decree. Learned counsel, submitted that in this case, the learned Court's below not only set aside the decree but also dismissed the suit. It was, therefore, maintained that the case should be sent back for decision of the two suits together if at all the ex parte decree is not sustained.
7. Learned counsel for the respondent argued that the Courts below had made certain observations as to the effect of certain acts taken under the Martial Law Regulation No,64 of 1959 and that if the suit is to be revived, then these questions should be left open. It was further added that the respondent maintained that the sale is violative of MLR No,64 of 1959 which question should be left open for the Court to consider including the objection as to the forum where these questions can be raised.
8. The submissions made by the learned counsel for the parties have been duly considered in the light of the material available on the record.
9. As noted supra, Muhammad Ramzan (respondent No,1) was owner of land measuring 563 Kanals 19 Marlas which comprised of ownership of 404 Kanals, 10 Marlas in Khewat Nos.140 and 159 Kanals, 9 Marlas in Khewat No, 763. He sold 100 Kanals, 9 Marlas through sale-deed, dated 5-1-1962 from Khewat No,140 for which mutation was attested on 18-9-1964. This mutation was cancelled in review on 9-9-1970 and the order of review was annulled in ex parte decree, dated 14-6-1973 passed in suit filed by the petitioner (Sultan). To challenge this decree, Muhammad Ramzan filed a suit for declaration with consequential relief which was decreed by the learned Civil Judge on assumption that an order of authorities acting under Martial Law Regulation No,64 of 1959 could not be possibly questioned in the Civil Courts. The learned District Judge reproduced the findings and thereafter proceeded to confirm the same without making any important contribution. The present revision arises out. Of the said suit of respondent No, 1 .
10. The perusal of the plaint in the suit of respondent No, 1, would show that the ex parte decree, dated 14-6-1973 was challenged on the grounds of fraud and misrepresentation being violative of Martial Law Regulation No,115 of 1972. Before 1980, a suit to challenge the decree on the ground of fraud and misrepresentation could have been instigated though after insertion of section 12(2) in the Civil Procedure Code, the filing of separate suit is barred and any aggrieved party can now file an application under section 12(2) to challenge the decree on the ground of fraud and misrepresentation. The scope of such like proceedings is to examine if the decree is the result of fraud or without jurisdiction, and the maximum result would be that the decree in the suit will be set aside and the proceedings in the suit will revive which of course will be decided on its merits. A suit cannot be dismissed while setting aside the decree. Reason being that there are many other questions as have been raised which have to be decided on merit. In the suit filed by the petitioner not only review of the mutation was challenged but also one of the claims was that the sale has been effected through registered sale deed,, if the transaction .Would be required to be invalid then the transferor cannot avoid the liability to return the benefits of the transaction. In terms of section o3 of the Contract Act, the transferee can ask for the return of the benefits. Obviously, if the Court would reach the conclusion that the transaction was not valid or was hit by any provision of the Martial Law Regulations, then the question of return of benefits will have to be attended to. Another objection was that the mutation was validly sanctioned and that it was not cancelled by the Land Commissioner or by any authority acting under Martial Law Regulation No,64 of 1959. It was the case of the petitioner that the cancellation was made by the Assistant Collector enjoying power under the Land Revenue Act, and, therefore, the Civil Courts were not denuded of its powers to examine if the act was against the natural justice. In the alternative the objection was that even if the authority was exercised by any forum under the Martial Law Regulation No,64 of 1959 still the order was void as the petitioner was not heard nor any notice was served on him. One of the crucial point raised was that the total ownership of respondent No,1 was 563 Kanals in two Khewat Numbers which was to be considered one holding for the purpose of MLR No, 64 of 1959 and if he sold 100 Kanals 9 Marlas out of 563 Kanals, there being no question of violation of MLR No,64 as his the remaining holding will be more than the requisite limit.
11. The Courts below in the present case, instead of working under the scope and extent of jurisdiction, proceeded to set aside the decree and also dismissed the suit, in which ex pane decree was passed. In this situation, the proper course was that the Courts should have confined to the question if the ex parte decree was the result of fraud or without jurisdiction as the plea was that no notice was sewed upon respondent No,
1. If the Court reached the conclusion that the ex parte decree was obtained without proper notice or by concealment of facts, it should have set aside the decree reviving the suit and deciding the same on its merits by attending to the questions noted (supra). Unfortunately, the Courts being oblivious of the other questions referred to above, proceeded to dismiss the suit after setting aside the decree, should not have dismissed the suit, but his objection is that the question as to the applicability of MLR No,64 of 1959 should be kept open if the suit of the petitioner is revived.
12. In this case, the material on record shows that the ex parte decree was not passed after proper notice to respondent No,1 and, thereafter to the extent of setting aside of the decree, the impugned order need not be interfered with. However, the impugned judgments to the extent of dismissing the suit of the petitioner in which ex parte decree was passed cannot be approved as the other important questions noted supra have neither been attended to by the Courts below nor any decision has been made thereon.
13. For the reasons above, this revision petition is partly allowed, the impugned judgments to the extent declaring ex parte decree, dated 14-6-1973 to be in-operative are not interfered with.
However, the impugned judgments to the extent of dismissal of suit of the petitioner are not approved and are accordingly set aside. Resultantly, the suit of petitioner, No,234 of 1973 in which ex parte decree was passed will stand revived which will be decided by the Courts below in accordance with law and on its own merits after attending to the question noted supra.
Respondent No,1 shall be entitled to raise all objections including the objection as to the effect of MLR No,64 of 1959 which will also be attended to by the learned Civil Judge on its merits and in accordance with law.
14. The parties will appear before the learned District Judge, Khushab, on 3-5-1999 who will requisition the file of Suit No, 234 of 1973 and entrust the same to any Civil Judge of competent jurisdiction who shall decide the main suit within six months by giving fair opportunity of hearing to the parties.