' Muhammad Ramzan and 4 others, respondents herein, including the petitioner Muhammad Usman filed a suit against Muhammad Nawaz, respondent No,5, herein, for possession of land falling in Khata No,333, Khatoni Nos.672 to 675, measuring 97 Kanals, 3 Marlas, situate in. Mauza Haitu, Tehsil Kallur Kot, District Bhakkar, as their share, out of total land measuring 777 Kanals, 7 Marlas, according to Register Haqdaran Zamin for the year 1967-68.
' During the pendency of the civil suit, one Riaz Muhammad son of Jewan moved an application on 25-5-1985 for being impleaded as necessary party on the ground that he had purchased the suit property in consideration of Rs,9,700 through an agreement of sale and the possession was handed over to him. He also stated in the application that the sale had been implemented in the Revenue Record and to this effect Rapt Roznamcha No,201, dated 24-2-1971 had been entered in the Revenue Record Muhammad Nawaz, defendant made a conceding statement in favour of the plaintiffs, but the learned Civil Judge, Bhakkar, vide his judgment and decree, dated 28-5-1985 dismissed the suit on the ground that the plaintiffs should have filed a suit for specific performance of the contract as there was an agreement between the parties and that the suit for simple possession was not maintainable. The plaintiffs filed an appeal on 15-6-1985 before the District Judge, Bhakkar. On 16-6-1985 statement of Muhammad Nawaz, defendant-respondent was recorded and the learned District Judge on the same day, i.e'. t6-6-1985 decreed the suit of the plaintiffs. Riaz Ahmad son of Muhammad Jewan, filed an application under section 12(2), C.P.C., on 18-6-1985 before the District Judge on the ground that decree, dated 16-6-1985 is based on fraud, and therefore, liable to be set aside.
2. From the divergent pleadings of the parties, the learned District Judge framed the following issues on the application under section 12(2), C.P.C. Moved by Riaz:--
(1) Whether the decree, dated 16-6-1985 passed by this Court is based on fraud and misrepresentation? OPA.
(2) Relief.
3. Riaz applicant produced Sultan Ahmad, Patwari as A.W.1 who proved Rapt No,201 dated 24-2-1971 Exh.A.1 according to Original Roznamcha Waqiati. Muhammad Nawaz, A.W.2, who was scribe of the agreement Exh.A.2, proved the agreement of sale between Muhammad. Nawaz and Muhammad Riaz, respondents. Two more witnesses, namely, Malka son of Nawaz and Ahmad Nawaz were produced as A.Ws.3 and 4, regarding sale of property in dispute by Muhammad Nawaz in favour of respondent Muhammad Riaz. Respondent Muhammad Riaz also produced Khasra Girdawaris Exhs.A.3 to A-9, pertaining to the years from Rabi 1969 to Rabi 1988. Muhammad Nawaz, respondent appeared, who denied the execution of the agreement by the petitioner and nondelivery of the possession. Another witness, namely, Muhammad Ramzan was also produced.
4. The learned District Judge after discussing the evidence on the record accepted the application filed by Riaz under section 12(2), C.P.C. And held that the decree in question had been obtained through fraud, partly by concealing the fact about the observation recorded by the trial Court and partly by concealing the fact that the petitioner had moved an application before the trial Court was still to be decided and in the absence and without impleading him as necessary party to the proceedings the decree has been awarded, thus the same being a nullity in the eye of law as liable to be set aside. Hence this revision petition.
5. The learned counsel for the petitioner submitted that the decree was awarded by the District Judge on the basis of conceding statement got recorded by Muhammad Nawaz in favour of the petitioners-plaintiffs which does not constitute any fraud or misrepresentation and that the ' jurisdiction of the District Judge to decide the appeal has been admitted by the respondent, therefore, the provisions of section 12(2), C.P.C. Were not attracted and the learned District Judge has committed an error by accepting the application under section 12(2), C.P.C. Filed by Muhammad Riaz, respondent. Further argued that Muhammad Riaz, respondent, had no locus standi to move the application under section 12(2), for the reasons that the word 'person' and not 'judgment-debtor' or 'successor-in-interest' or the words 'party of the suit' have been mentioned in the provisions of section 12(2), C.P.C.
6. Conversely, the learned counsel for the respondents has argued that the suit of the plaintiffs Muhammad Ramzan and others was for possession simpliciter on the basis of agreement to sell which was not maintainable under the law and that admittedly the application was moved by Muhammad Riaz to be impleaded as necessary party in the proceedings on 26-5-1985 but no order was passed by the learned trial Court on the said application, rather the learned trial Court proceeded to reject the plaint. The appeal was preferred on 15-6-1985 and wuthout issuing any notice or the knowledge of Muhammad Riaz respondent the decree, dated 16-6-1985 was passed by the learned District Judge on the basis of a compromise in the light of the statement of Muhammad Nawaz respondent. Further contends that Roznamcha Waqiati and Khasra Girdawaris Exh.A.2 to Exh.A.9 show that respondent Muhammad Riaz has legal vested right being in possession of the disputed land. Further contends that the argument of the learned counsel for the petitioner that the respondent Muhammad Riaz had no locus standi to move the application under section 12(2), C.P.C. Because he was not party to the proceedings, is not sustainable under the law.
7. Muhammad Ramzan and others, plaintiffs, filed the suit for possession which was not maintainable. In case reported as Zafar Ahmad v. Mst. Hajran Bibi (PLD 1986 Lah. 399) the right of a party to sue and file the suit on the basis of agreement to sell is a suit for specific performance of the agreement. This is well-settled law that the trial Court is under legal obligation to decide miscellaneous application filed by the parties during the pendency of the suit. Admittedly, the application was moved by Muhammad Riaz on 26-5-1985, but no ceder was passed by the learned Civil Judge, and the plaint was rejected on 15-6-1985, and in a clandestine manner the appeal was filed on 15-6-1985 and on the conceding statement decree was obtained by the petitioner on 16-6-1985. In this view of the matter, the Civil Judge and the learned District Judge, who had passed the decree, dated 16-6-1985 acted without jurisdiction. The decree, dated 16-6- 1985 of the learned District Judge was passed in hurry on 16-6-1985, i,e, on the very next day of filing of the appeal on 15-6-1985 only to frustrate the right of the respondent Muhammad Riaz to get his case adjudicated. Though it is correct that Muhammad Riaz was not a party to the proceedings in the suit filed by plaintiff Muhammad Usman and others, yet he could have filed an application under section 12(2), C.P.C. Suffice to say that the Hon'ble Supreme Court in Khawaja Muhammad Yousaf v. Federal Government through Ministry of Kashmir Affairs and others (1999 SCM R 1516) has observed that:-- "If a person is adversely affected by an order or judgment of a Court or Tribunal rendered in a proceeding to which he is not a party and to which proceeding C.P.C. Is applicable, he can file an application under section 12(2), C.P.C. For the reason that the word 'person' and not judgment- debtor or his successor-in-interest or the words party to the suit, have been used as highlighted in the above report."
The view has been followed by this Court in case reported as Mst. Kishwar Sultana v. Muhammad Nazir and another (2000 CLC 1719). No material irregularity or error of jurisdiction has been committed by the learned District Judge by accepting the application under section 12(2), C.P.C.
While passing the impugned order, dated 161-1991.
' For what has been discussed above, there is no force in this revision, which is consequently dismissed with costs.