' This is a revision petition under section 115, C.P.C. Against the order, dated 2-6-1994 passed by the learned Additional District Judge, Narowal, whereby he dismissed the appeal of the petitioner.
Against the judgment and decree, dated 6-7-1988 passed by the learned. (Civil Judge) Judge, Family Court, Narowal.
2. Briefly stated the facts of the case are that the petitioner was married with respondent No,1 on 4- 12-1974 but she was divorced on 12-4-1981 which became effective on 12-8-1981. Therefore, respondent No,1 had instituted a suit for recovery of possession of land situated in village Dhabli Wala and Haq Mehr on 25-7-1983 in the Court of learned Family Judge, Narowal on the basis of a Kabin Nama which was allegedly incorporated in the form of Nikahnama. ' The suit was resisted, the issues were framed, the evidence was led and the suit was decreed on 6-7-1988. An appeal was preferred which was dismissed by the learned Additional District Judge on 23-6-1994.
Thereafter a Writ Petition No,8529 of 1994 was filed which was also dismissed on 4-4-1995. Special leave to appeal was sought by making a C.P.S.L.A. No,499/L of 1995 before the Honourable Supreme Court but the leave to appeal was refused on 12-12-1995. Thereafter, some new facts came to the knowledge of the petitioner and he filed a Review Petition No,21/L of 1996 (C.P.S.L.A. No,499/L of 1995 before the Honourable Supreme Court which was also dismissed on 5-5-1996. Thereafter, the petitioner filed an application under section 12(2), C.P.C. On 18-6-1997 before the learned District Judge, Narowal alleging that after decision of the Honourable Supreme Court, the petitioner came to know through reliable sources that the Nikah nama (Exh.P.3.) and Kabin Nama, produced by the respondents in the trial Court was forged and fictitious and prepared by the respondent No,2 himself on which the seal of the Union Council was also forged one and even the signature of the Secretary have been made by the respondent No,2 himself and after preparing their attested copies the same have been produced in support of their stand on the basis of which the case has been decided against the applicant from the lower Court to the Appellate Court and during the trial of the case record remanded not available in the Union Council which was preserved in the Union Council, Kundan Sian after the decision by the Honourable Supreme Court and this fact has been revealed that the respondents had got prepared exhibit Nikahnama Forms in the name of the applicant under various entries, and they continued making changes in them according to their needs. Thus, the respondents have made an attempt to deprive the applicant from valuable asset by way of fraud and misrepresentation, the same was dismissed in limine on 3-12-1999 on the ground of maintainability.
3. Now the petitioner seeks revisal of the impugned order, dated 3-12-1999.
4. Notice was given to the other side that entered appearance and arguments were heard at length.
5. The contention of the learned counsel for the petitioner is that the scope of review and that of section 12(2), C.P.C. Were altogether different. Elaborating his point he submitted that a review petition before the Honourable Supreme Court was only under section 114 of the C.P.C. It was under the Supreme Court Rules, 1980 and that section 114, C.P.C. Provides that nothing contained in subsection (1) shall apply to a review of any judgment pronounced or made by the Supreme Court, and under section 12(2), C.P.C. Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit. The learned counsel submitted that as the C.P.C. Was not applicable before the Honourable Supreme Court as held in the case of Mubarik 'Ali v. Fazal Muhammad and another PLD 1995 SC 564 and that in the Supreme Court, the Supreme Court Rules, 1980 were applicable in the matter of procedure, the C.P.C. Was not applicable and secondly, in family matters the last Court is the Court of District Judge, therefore, he could move an application under section 12(2), C.P.C. Before him alone and that no provision similar to the provision of section 12(2), C.P.C. Was available in the Family Courts Act, therefore, the petitioner had to invoke that section and that the learned Additional District Judge has dismissed the application on the grounds of maintainability.
6. On the other hand, the learned counsel for the respondent has submitted that the matter stood decided by the 'Honourable Supreme Court where the Kabin Nama Exh.P.1. And Nikah Nama Exh.P.3.
Were also considered and that the knowledge of the fraud was also mentioned in para.5 of the Review Petition No,21-L of 1996 in C.P.S.L.A. No,499/L of 1995.
7. In the case of Mubarik Ali v. Fazal Muhammad PLD 1995 SC 564 two separate applications were filed by the appellant under section 12(2), C.P.C. Before the High Court for the recall of its decisions of even date in two R.S.As. On the ground that these decisions had been secured by fraud practised by the respondents, and that certain manipulation to fraud him came to the light after the regular second appeals were decided. Since the appellant had preferred the two petitions for leave to appeal against the decision passed in the second appeal before the Honourable Supreme Court, which were withdrawn, the learned Single Judge returned the said application to the appellant for filing the same before the Honourable Supreme Court as he felt that the Court had last dealt with the matter and, therefore, the jurisdiction to deal with such applications lay with it. Being aggrieved by the said two orders, the appellant, petitioned the Honourable Supreme Court of Pakistan for leave to appeal which was granted to consider the question whether in view of the fact that the petitions for leave to appeal were not pressed. It could still be said that the final judgments in the two suits have been passed by the Honourable Supreme Court. The Honourable Supreme Court observed as under:-- "4. The main question that arises is whether the two orders passed by this Court on 24-1-1987 dismissing the two petitions filed by the appellant seeking special leave to appeal amounts to final judgments, decrees or orders, within the meaning of section 12(2), C.P.C. Section 12(2) of the said Code reads as follows:- `Bar to further suit.--- (1) ..................................................
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.'
' What is intended is that a party must, go to that Court which has finally decided the matter, if it desired to secure a reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The word 'final' can mean the last in a series of judgments, decree or orders which may have been passed. It can also mean that which is no longer further alterable and which has acquired finality. It is in the latter sense that the word ' final' appears to have been used in section 12(2). A decision can only be treated as final if it is unalterable, except by any of the means provided by the Code of Civil Procedure or by any special procedure applicable to the given case. Thus, a final judgment, decree or order would mean a judgment, decree, or order, so far as the Court rendering it is concerned, is unalterable, it is not sought to be modified, reversed or amended by preferring an appeal, revision or review application. The applicant desires the reversal of the two decrees passed by the High Court in R.S.As. Nos.176 and 177 of 1984. The appellant at one stage did file two petitions to this Court seeking leave to .Appeal, which he withdrew on 24-1-1987 as he had earlier filed two applications before the High Court on 18-1-1987, for setting aside the two decrees on the .Ground that they had been obtained by fraud. This Court, by its two orders, dated 24-1-1987, permitted the appellant to withdraw the two petitions for leave and dismissed the same accordingly as withdrawn. These two orders cannot be treated as final disposal of the case. They neither finally decided any matter directly in issue in the case in respect of the rights of the parties, nor did they decide any issue which went to the foundation of the case which could never, whilst the decision stood, be questioned. The test whether the two orders disposed of the proceedings completely before this Court and the cases were never kept alive for being dealt with further, is not met. Rather, the two orders opened up scope for the decrees in the two regular second appeals being challenged before the High Court under section 12(2) of the Code of Civil Procedure. The two orders of this Court passed on 24-1-1987 were, therefore, not final judgments, decrees or orders within the meaning of section 12(2) of the Code. Had the appellant not withdrawn the two petitions seeking leave, the answer may have been different. Had leave been granted, the decision in the two appeals would have definitely led to final judgments or decrees. Had leave been refused after a proper appraisal, it may again have led to two final decisions, for this Court would have touched some matter which would have gone to the very foundation of the cases which could not have been assailed anywhere, whilst the decisions lasted. It is a different matter whether this Court would take up petitions filed under section 12(2), C.P.C. For disposal, considering that under rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the Rules. Whether it would act in review under Order XXVI of the Rules, or under rule 6 of Order XXXIII under its inherent powers to secure the ends of justice, or on the basis of observations contained in Abdul Majid's case PLD 1982 SC 146 that a party who desires to show that a decision was obtained by fraud, need not do so by separate suit, but may do so by moving the same Court, would depend upon each case separately. However, we are not confronted with this situation and notwithstanding the views expressed, we would leave the matter open."
8. In the case before me a Civil petition No,499/L of 1995 and Civil Review Petition No,21/L of 1996 were moved in the Honourable Supreme Court of Pakistan and in para. No,5 of the review petition ground of fraud was taken and the Honourable Supreme Court finally disposed of the matter on 5- 5-1996 with the following observations:-- "We heard the learned counsel for the petitioner. He has not been able to make out any good ground for review. This petition is accordingly dismissed."
' In Mubarik Ali's case (supra) the matter was left open. In the present case, it has been closed. The result is that the order passed by the learned Additional District Judge, is perfectly regular and legal. The present civil revision is therefore, dismissed.