' On 17-11-1994, the petitioner filed a suit for declaxation against the respondent No,3 and on the basis of the consent of the said respondent, was able to procure a decree. The other respondents, moved an application under section 12(2) of C.P.C., challenging the decree being based upon fraud and mis-representation. During the proceedings of this application, the petitioner vide his statement dated 8-2-1995, as affirmed on 8-3-1995, conceded that he has no objection, if the decree is set aside. In the light of above, the decree was set aside, but not only that, the learned Civil Judge, by treating the application of the respondents under section 12(2) of C.P.C. As a suit, also awarded a decree of title to them. Against the above, the petitioner preferred an appeal, but without any success.
2.. Learned counsel for the petitioner contends, that though on the basis of the consent of the petitioner, the application under section 12(2) of C.P.C. Could have been accepted and the decree in his favour set aside, but the application under section 12(2) of C.P.C., could not have been treated as an independent suit for declaration about the title of the respondents (applicants under section 12(2) of C.P.C.) and decred, therefore, the judgments and decrees, passed by the two forums below are illegal.
3. Conversely, the learned counsel for the respondents by relying upon Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others (PLD 1993 Peshawar 87) and Noorul Amin and another v.
Muhammad Hasim and 27 others (1992 SCMR 1744), states that the Court has jurisdiction to treat an application under section 12(2) of C.P.C., as a suit or vice versa.
4. I have heard the learned counsel. For the parties. The can be no cavil with the above proposition about the powers of the Court qua the conversion of the proceedings, but in the present case, the position is altogether different. The Court below, after having allowed the application of the respondents under section 12(2) of C.P.C., by the setting aside the decree in favour of the petitioner, has treated the same application as a suit for declaration of title on behalf of the respondents and has passed a decree in their favour. This is absolutely impermissible undet the law. When the decree in favour of the petitioner was set aside, especially on the ground of fraud and misrepresentation, the suit of the petitioner would be deemed to be pending and should have been proceeded for trial afresh. However, in the same proceedings, the application of the said respondents could never be treated as a suit for declaration on their behalf, for the title of the property. For that, the respondents were obliged to file a fresh suit, which if necessitated, in the facts and circumstances of the case, should have been consolidated alongwith the suit of the petitioner and tried together.
5. The learned Courts below have committed glaring error of jurisdiction in passing the impugned judgments and decrees and have acted with material illegality in proceeding with the case, thus, such judgments and decrees cannot be allowed to sustain in law.
' In the light of the above, this revision petition is accepted. The judgment and decree passed in favour of the respondents in the application under section 12(2) of C.P.C., by conversion into a suit, is set aside. However, the respondents if so advised, may file an independent suit about their rights.
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