JUDGMENT MRS. FAKHAR UN NISA KHOKHAR, J. - Brief facts of the instant writ petition are that the petitioner filed a suit for declaration against respondent No. 3 for a direction to the revenue authorities to correct the entry in the revenue papers. The suit was contested by the respondent No. 3 and it was decreed vide judgment and decree dated 14.1.1984 in favour of the petitioner. An application under Section 12 (2), CPC was moved by the respondents Nos. 1 and 2 namely Bashir Ahmad and Abdul Sittar against the petitioner for setting aside the judgment and decree dated 14.1.1984 on the basis of fraud, misrepresentation and without notice to the petitioners. This application was contested, issues were formulated and evidence was led by both the parties.
Consequently, the learned Trial Court accepted the application, set aside the judgment dated 14.1.1984 vide order dated 9.4.1990. Feeling aggrieved against this order the petitioner instead of filing a revision filed an appeal before the learned Appellate Court on 8.5.1990. The learned Appellate Court vide order dated 29.6.1994 dismissed the appeal being incompetent with the observation that .On an application under Section 12 (2), CPC no right of appeal exists and the Court has no jurisdiction to convert this appeal into revision petition. The learned Appellate Court cited "Gahna Khan Vs. Mitha" (^LJ 1983 Lahore 166).
2. Learned counsel for the petitioner has relied on "Karamat Hussain and others Vs. Muhammad Zaman and others" where it is held that second appeal brought before the High Court exhibiting certain features which demonstrated that if fell within scope of interference under Section 115, CPC, High Court, should, in such case, exercise its jurisdiction under said provision of law. "Abdul Latif Niazi Vs. Punjab Province through Collector, Multan" (985 SCMR 27) on the same point, and "Lal Khan and another Vs. Rehmatullah and 5 others" (1996 CLC 1696) where it is held that order u/S. 12 (2), CPC is not appealable but is revisable. The learned Appellate Court has got power to convert any appeal into revision and vice versa provided such decision was not otherwise affected by any other law like that of limitation.
3. Respondent present in Court submits that the learned Trial Court has accepted his application u/S. 12 (2), CPC. Petitioner did not challenge the judgment of the learned Trial Court in revision, therefore, it was rightly dismissed by the Appellate Court.
4. I have heard the learned counsel for the petitioner and respondent in person. It is very strange that the learned Appellate Court has cited "Gahna Khan Vs. Mitha" (PLJ 1983 Lahore 166) and has not read the judgment. It is held in this judgment that although the order u/S. 12 (2) is not appealable but revisable but the appeal may be converted into revision provided it is not hit by any law.
5. I have seen the appeal which is wrongly filed within the limitation, therefore, the case of the petitioner was not hit by any law. The substantial justice cannot be denied to a litigant on mere technicalities. The learned Appellate Court had jurisdiction to convert the same into revision and decide the case on merits after being satisfied that it was not hit by any other law. Therefore, I accept the instant writ petition, set aside the judgment dated 19.6.194 being the outcome of error of law and remand the case to the learned District Judge, T.T. Singh to decide the case himself or entrust the same to other competent forum and direct the subordinate Court to decide this appeal purely on merits after fulfilling the legal formalities within one month of receipt of this judgment.
6. Parties are directed to appear before the learned District Judge, T.T. Singh on 21.12.1999.