' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment dated 26-11-1998, passed by a learned Single Judge of the Lahore High Court in Writ Petition No,550 of 1996.
2. Brief facts are that on 15-11-1969, Ch. Faqir Ullah, predecessor-in- interest of the private respondents herein, filed a suit for possession through pre-emption in respect of the land in dispute against the petitioner. The suit was dismissed for non-prosecution on 3-7-1971.
It is alleged that the case was restored on 9-7-1971, without giving notice to the petitioner. Although on 20-9-1971, the case was sent to the Court of learned District Judge for transfer to some other Court of competent jurisdiction, in that, the learned Civil Judge, seized of the matter, had no jurisdiction to try the suit yet the same was further processed by the learned Civil Judge.
3. Be that as it may, the petitioner absented herself and was proceeded against ex parte. On 3-1- 1973, the petitioner moved an application under Order IX, Rule, 13, C.P.C., for setting aside the ex parte decree, on the ground that ex parte proceedings were taken against her on 11-10-1972, without service of notice upon her. The same was dismissed. The appeal as well as revision filed by the petitioner was also dismissed. The same was the fate of the petition for leave to appeal filed by the petitioner (C.P. No,126 of 1976), which was dismissed by this Court on 19-1-1978.
4. After exhausting her remedies as aforesaid, the petitioner filed an application under section 12(2), C.P.C., for setting aside the ex parte judgment and decree, dated 6-12-1972, inter alia, contending therein that the suit earlier dismissed for non-prosecution was wrongly restored on the alleged false report of the process-server that the petitioner had gone elsewhere. It was also pleaded in the application that on 28-3-1972 a false and fictitious attendance of the ex-counsel Ch. Zafarullah, Advocate, was shown, although he was not present before the Court. Inter alia, on the above premises it was alleged in the application under section 12(2), C.P.C. That the ex parte decree was obtained by the respondent through fraud and misrepresentation. Alongwith the above application was filed with an apllication for condo-nation of delay under section 5 of the Limitation Act. The learned Senior Civil Judge by order dated 1-3-1989 rejected the application being hit by Order VII, rule 11, C.P.C. On revision the learned Additional District Judge remanded the case to the trial Court for decision afresh. After recording evidence, in pursuance of the remand order, the application was again dismissed by the learned Senior Civil Judge by order, dated 19-1- 1993. Revision petition filed against the said order was dismissed by the learned Additional District Judge by order, dated 21-9-1995. Being aggrieved, the petitioner filed Constitutional petition before the High Court, which was dismissed by the learned Judge in Chambers vide the impugned judgment. The petitioner now seeks leave to appeal.
5. Mirza Hafeezur Rehman, learned Advocate Supreme Court for the petitioner argued that the provisions of Order IX, Rule 13, C.P.C. And section 12(2), C.P.C., are independent remedies and invocation of one does not exclude the application of the other. Elaborating the plea, he submitted that the Order IX, Rule 13, C.P.C., contemplates setting aside ex pane decree whereas section 12(2), C.P.C., provides a remedy for setting aside the decree obtained through fraud/ misrepresentation.
6. The learned Judge in Chambers dismissed the writ petition, inter alia, with the following observations:-- "Admittedly she had applied for setting aside ex parte decree but that application was rejected up to the level of Supreme Court and the same controversy could not be re-opened on the basis of application under section 12(2), C.P.C. The learned Additional District Judge has rightly noticed that the dispute could not be re-agitated when it stood settled up to the level of the Supreme Court of Pakistan."
7. Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redress of his grievance. Firstly, an application under Order IX, Rule 13, C.P.C.; secondly, an appeal from the ex parte decree under section 96 (2), C.P.C.; a petition for review under section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by section 12(2), C.P.C. Here, the petitioner has exhausted her remedies by filing an application under Order IX, Rule 13, C.P.C. And, therefore, on the same ground she cannot be permitted to re-agitate the same issue by means of a fresh petition under section 12(2), C.P.C.
8. Be that as it may, while dealing with the allegations under section 12(2), C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held if Amiran Bibi v. Muhammad Ramzan (1999 SCM R 1334). In the instant case, we have gone through the application under section 12(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner under section 12(2), C.P.C., was liable to be dismissed without formulating issues and recording evidence of the parties.
9. Resultantly, the petition fails and is hereby dismissed. Leave is refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.