' This revision petition has arisen out of judgment passed by Syed Muhammad Zafar Babar, District Judge, Faisalabad, dated 6-3-1993 whereby the learned Judge by accepting the appeals set aside the judgment and decree passed by the learned trial Court, dated 22-12-1987 and a suit for declaration filed by the petitioner/plaintiff was dismissed on the ground that it was not maintainable in its present form.
2. Some relevant facts for disposal of this petition are that Mst. Husna widow of Lal instituted a suit for Permanent Injunction against her husband stating therein that her husbands had alienated the land measuring 131 Kanals and 14 Marlas in her favour through a gift, therefore, her husband be restrained to disposses her. The suit was decreed on 29-10-1978, thereafter Mst. Ghulam Fatima the petitioner/plaintiff filed a suit for declaration claiming therein that Lal had gifted the suit land to her vide gift deed dated 14-3-1978, therefore, the decree obtained by Mst. Husna is illegal, collusive and based upon fraud and being so is liable to be set aside. Then a suit for declaration was filed by Aslam Pervaiz, etc. Claiming themselves to be the legal heirs of late Lal (since dead) and they challenged the gift deed in favour of Mst. Ghulam Fatima and also the mutation and exchange deed executed in between Mst. Husna etc. With Pehlwan. Both the suits were contested by the respective defendants, all relevant issues were framed, evidence of the parties was recorded and the suit filed by Aslam Pervaiz etc. Was dismissed while the suit filed by Mst. Ghulam Fatima was decreed vide judgment, dated 22-12-1987.
3. Being aggrieved from the Judgment, dated 22-12-1987 two appeals were filed by Mst. Husna and Pehlwan, both against Mst. Ghulam Fatima and while disposing of both ' the appeals the learned District Judge examined the case on the question of maintainability as according to the learned counsel for the appellants before the Appellate Court, the suit filed by the respondents was not competent under the provisions of section 12(2) of the Code of Civil Procedure which came into picture as a consequence of the amendmentin Civil Procedure Code in the year 19x0 while the suit of Mst. Ghulam Fatima was filed in the year 1981. The learned District Judge came to this conclusion that the respondents in appeals should have filed an application under section 12(2), C.P.C. For challenging the judgment and decree, dated. 22-12-1987 on the allegation of fraud and no separate suit could be filed. As a consequence of it both the appeals were accepted and the suit of Mst. Ghulam Fatima was dismissed vide judgment, dated 6-3-1993. Hence this revision.
4. 1 have heard it counsel for the parties and I have also gone through the relevant certified copy of the record placed before me.
5. Learned counsel for the petitioner mainly argued that the plaint in the suit for.. Declaration could be converted into an application under section 12(2), C.P.C. Under the law, therefore, the suit of the petitioner could not be dismissed. He referred to the cases reported in Noor-ul-Ameen and another v. Muhammad Hashim and 27 others 1992 SCMR 1744, Faqir Muhammad Khan and 18 others v.
Ghulam Elahi and others NLR 1993 Cr1. 798(sic) and Faqir Muhammad Khan and 18 others* v.
Ghulam Elahi and others PLD 1993 Peshawar 87 in support of his arguments.
6. Learned counsel for the respondents did not oppose the legal point raised by the learned counsel for the petitioner, anyhow, his point of view was that the learned trial Court could not ' convert the plaint into an application under section 12(2), C.P.C. As the suit was not pending before that Court which opposed the decree, therefore, the learned trial Court had no jurisdiction in this regard.
7. The poilt for examination is that as to whether the plaint in the suit for declaration filed by Mst.
Ghulam Fatima could be converted into an application under section 12(2) of the, C.P.C. Which basically requires that on the allegation of misrepresentation, fraud such-like application is to be moved before the same Court which passed the Judgment and decree or the matter. It looks that there is no serious dispute in the instant case in the light of the judgments of the Superior Courts as mentioned above because it was held in Noor-ul-Ameen and another v. Muhammad Hashim and 27 others 1992 SCMR 1744 that if a plaint in a suit is registered as a plaint mere this fact cannot debar the Court of its jurisdiction to decide the same as an application under section 12(2), C.P.C.
But the Court must have jurisdiction in this regard under the law and it was also held that the Courts should always lean in favour of adjudication on merits rather than stifling the proceedings on technicalities. Now keeping in view the facts and circumstances of the instant case it can be believed that the suit was not filed in the Court which had passed the decree in favour of Mst.
Husna due to which it can be argued that the Court, into the suit for declaration so pending, had no jurisdiction in the affairs. This contention may be convincing but again the question would arise that the matter is being disposed of on technicalities; simple for the reasons the remedy available is being suppressed. The suit was dismissed by the District Judge, on the ground that the application under section 12(2), C.P.C. Should have been filed; perhaps it did not remain in his mind that he himself was fully competent to convert the plaint into an application or he could send the file to the Court which passed the decree in favour of Mst. Husna or to the successor of the Court in order to remove the technicalities, meaning thereby, on the question of jurisdiction, remedy was available with the District Judge but he omitted to think over it and dismissed the suit filed by the petitioner/plaintiff. So, the solution was that theDistrict Judge should have sent the file of the suit to the Court which passed the decree or he himself after converting the plaint into an application could entrust the same to the successor of the Court concerned or remand the case to the Court concerned by reflecting the legal provisions available in the affair, therefore, he committed illegality in setting aside the suit filed by Mst. Ghulam Fatima and being so the judgment, dated 6- 3-1993 is not sustainable in the eyes of law.
8. In view of above discussion the judgment, dated 6-3-1993 is set aside and the case is remanded back to the learned District Judge, Faisalabad with direction to entrust the suit to the Court which had passed the decree in favour of Mst. Husna or to the Successor of the Court concerned for a fresh decision in the case in the light of the observations made above.
' This revision petition is disposed of accordingly.