MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 5-5-2000 whereby the appeal filed by the appellants, herein, -was dismissed and the judgments of the Courts below were maintained.
2. The facts, giving rise to the present appeal, precisely stated, are that a suit for adverse possession was filed by respondent Sher Afzal, against the present appellants and 7 others in the Court of Sub-Judge, Dhirkot on 27-8-1983, regarding land measuring 4 Kanals, 6 Marlas situated in Village Chaprian Tehsil Dhirkot. Three of the defendants admitted the claim of respondent while other defendants and the appellants, herein, were proceeded ex parte and a decree for adverse possession was passed in favour of respondent, herein, on 29-8-1984.
3. The appellants; herein, instead of moving an application for setting aside the ex parte decree against the respondent filed a declaratory suit before the Court of Sub-Judge, Dhirkot on 2-8-1993, alleging therein that they were A in Pakistan in connection with their service and an ex, parte decree was obtained by the respondent against them without their due service and the said proceedings were - purposely kept secret from them. It was further alleged that in fact the parties were co-sharers in the suit-land and only a fraction of the suit-land fell in possession of Sher Afzal.
Khan respondent, but a fictitious decree was obtained by him by misrepresenting the facts in the trial Court. Thus, they prayed that the ex parte decree, dated 27-8-1983, obtained by the respondent, herein, may be declared null and void against them. The trial Court after taking written statement' framed issues and thereafter recorded evidence of the parties. The judgment of the trial Court shows that it framed all the issues but in fact the suit was dismissed on the point of limitation deciding Issue No.4 against the appellants-plaintiffs, while dealing with other issues the trial Court observed that application for setting aside the ex parte decree should have been filed within a period of 90 days prescribed for that but instead a declaratory suit was filed which was also incompetent and time-barred. The appeals taken to the District Judge and the High Court by the appellants also failed. Hence this appeal..
1992 SCMR 1744 and Saifur Rehman and, others v. Haider Shah and another PLD 1967 SC 344.
5. In reply it was vehemently argued by Sardar Atta Ellahi, the learned counsel for the respondent that the ex parte decree could not have been challenged by filing a declaratory suit as the remedies open to the appellants were to file (i) review petition, (ii) application for setting aside the ex parte E3 decree and (iii) the appeal, but none of the aforesaid remedies were availed by the appellants as such the declaratory suit filed by appellants being incompetent was not maintainable. The learned counsel for respondent further submitted that the fraud was neither alleged nor proved rather the perusal of the plaint filed by appellants clearly establishes the fact that it was purely a declaratory suit alleging therein that the service upon the appellants was not properly effected as they were residing in Pakistan. Thus, the decree was obtained with the connivance of other defendants who admitted the claim of plaintiff-respondent.
6. We have given our due consideration to the arguments advanced at the Bar and perused the relevant record. Order IX, Rule 13 of the Code of Civil Procedure reads as under:-- "In any case in which a decree is passed ex parte against a defendant, he can apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons were not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, arid shall appoint a day for proceeding with the suit.".
The remedies available to the appellants against an ex parte decree were to file:-- (i) an application under Order IX. Rule 13, C.P.C.,(ii) a review application under section 114, C.P.C. And (iii) an appeal under section 96, C.P.C., but instead of availing the aforesaid remedies the appellants chose to file a declaratory suit which was neither competent under any provision of law nor the learned counsel for the appellants could substantiate his view point that the declaratory suit for setting aside the ex parte decree ,vas maintainable under any of the provisions of law .
7. Another contention advanced by the learner counsel for the appellants is that the declaratory suit filed by the appellants was not time --barred and none of the Courts below and even the High Court observed that under which provision of law the suit filed by the. Appellants was barred by limitation. This question would have arisen if we have reached the conclusion that the suit filed by appellants was at all maintainable. When the suit itself was incompetent, the question of its being barred by limitation would not arise. Therefore, the contention raised by the learned counsel for the appellants stands repelled.
8. It was argued by the learned counsel for the appellants that the declaratory suit filed by appellants for setting aside the ex parte decree may --be treated as an application for setting aside the ex pane decree. In support of his contention the learned counsel pointed out that he duly raised the said point in his memo of appeal before this Court but on careful perusal of the record we find that the said point was not raised in the memo of appeal nor the same was raised in the concise statement, therefore, the same could not be allowed to be raised for the first time in this Court. It is indeed correct that under subsection (2) of section 12 of the Code of Civil Procedure al person can challenge the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by making an application to the Court which passed the final judgment, decree or order and not by a separate suit but in the instant case even this contention of the learned counsel is repelled on the ground that the appellants did not file the application challenging the validity of judgment or decree or order on the plea of fraud or want of jurisdiction but they filed a declaratory suit. Subsection (2) of section 12, C.P.C. Was added by Ordinance X of 1980 which even, according to the learned counsel for appellants, was not adapted in Azad Jammu and Kashmir. Even if the same had been adapted, the fact of fraud or want of jurisdiction or misrepresentation was neither. Alleged nor raised before the Courts below as well as the High Court and even before this Court. The civil law being a law of omission and commission, thus, a plea not raised and argued could not be allowed to be raised for the first time in this Court.
9. The case-law cited by the learned counsel for the appellants has no application to the facts and circumstances of the present case. In a case reported as Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCM R 1744 it was observed that the mere fact that the plaint in the suit was described as a plaint and was registered as plaint could not deprive the Court of its jurisdiction to decide it as an- application under section 12(2), C.P.C. If otherwise such jurisdiction was available to the Court under the law. It was further observed that application under section 12(2) could be filed for setting aside the decree on the grounds mentioned in the said plaint and no prejudice is caused to the respondent by treating the plaint as an application under section 12(2) of the Code of Civil Procedure.
10. In the other case reported as Saifur Rehman and others v. Haider Shah and another PLD 1967 SC 344 the principle enunciated was that the Court was not' precluded from ordering execution on application presented after requisite term of 12 years on the basis of fraud.
11. Even the High Court has also observed in the impugned judgment that the remedy for setting aside the ex parte decree is an application for setting aside the ex parte decree within 90 days.
Assuming in the case in hand, as contended-by the learned counsel for the appellants that the summons were not duly served upon appellants the limitation starts from the date of knowledge.
The appellants acquired the knowledge of ex . Parte decree, as per statement of Masihullah, one of the appellants, about six months before filing of the suit. Thus, the suit filed after 90 days, even if it is treated as application as visulaised under Order IX, Rule 13, C.P.C., was hopelessly time-barred. The High Court further observed that a suit for pre--emption was filed- against the ex parte decree by one Muhammad Asad treating it as sale. The present appellants were pro forma respondents in that case and the case was dismissed by the trial Court and the order of dismissal was upheld by the High Court on 21-1-1993 in Civil Appeal No.35 of 1992. The suit was filed before the Court of Sub- Judge, Dhirkot on 25-9-1984. As the present appellants were pro forma defendants in that case throughout, it cannot be accepted that they were not in know of the decree. We have also no reason to disagree with the opinion expressed by the High Court in this regard.
12. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs.