ABDUR RAUF KHAN LUGHMANI, J.--Claim of Saeed Khan, son of Shafiqur Rehman for declaration that he is owner in possession of 8 Marlas of land in the suit Khata situate in village Sokari Hassan Khel, having purchased it from Dil Faraz Khan, the predecessor-in-interest of the contesting defendants, as such they (defendants 1 to 7) have no concern with it and that the revenue papers are liable to correction, was decreed by the judgment and decree dated 5-2-1985 of Senior Civil Judge, Bannu in Civil Suit No,18/1 of 1985. The defendants in said suit were the legal heirs of Dil Faraz Khan out of whom, except Mst. Mehr Taj Bibi his widow, rest of the defendants were his sons and daughters who were all minors and were represented by their guardian-ad-litem Mst. Mehr Taj Bibi, their. Mother. Out of the minor defendants, Mst.Rozina, daughter of Dil Faraz Khan on attaining majority submitted a petition under section 12(2) of the C.P.C. praying for setting aside the aforesaid decree on the ground that the decree was off spring of fraud and collusion between Saeed Khan and Haji Sher Dad Khan, petitioner and respondent No,8 respectively. It was averred that the petitioner and respondent No,8 are dexterous persons and at the instance of the latter the suit was brought by the former against seven persons in all. The learned Civil Judge, Bannu who was seized of the matter by his judgment dated 13-5-1977 dismissed the said petition, which was impugned in revision before the Additional District Judge, Bannu, who by his judgment and decree dated 5-12-1997 accepting the civil revision, granted the petition under section 12(2), C.P.C. And set aside the decree dated 5-2-1985 of the Senior Civil Judge, in Civil Suit No,18/1 of 1985. By the same judgment he granted relief of recovery of Rs,42,500 against Sher Daud in favour of one Saeed Khan.
The plaint of Suit No,18/1 was rejected.
2. Finding no other alternate remedy Saeed Khan has invoked the extraordinary Constitutional jurisdiction of this Court through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. Without dilating upon the question which of the two judgments one by the Civil Judge and the other by the Additional District Judge was obliging one, we would just advise the learned Additional District Judge not to use the judicial office and the legal judgments a tool for expressing his displeasure against the Presiding Officers of competent Courts of jurisdiction. While setting aside the order of the learned trial Court dismissing the application under section 12(2) of the C.P.C. He travelled beyond the limits by going into the validity of the claim made in the original suit. He could only set aside the order of the trial Court regarding disposal of application filed under section 12(2), C.P.C. And consequently the suit filed by the petitioner should have been proceeded. It was for the trial Court to determine in that suit whether or not the claim of the petitioner is genuine. Rejection of plaint on the ground that it did not disclose cause of action is totally unjust as well as illegal in the circumstances of the case, for perusal plaint in Civil Suit No,18/1 reveals that the petitioner claims declaration of title and confirmation of possession over the disputed land on the basis of purchase from Dil Faraz Khan who was admittedly owner of the suit land. The case of the plaintiff as set up in the plaint is that he had purchased the suit land from Dil Faraz Khan and had paid him the entire sale consideration in presence of the witnesses whereafter he was given possession of the suit land. Dil Faraz Khan died. Thereafter, the defendants are refusing to accept his claim. Certainly the plaint did disclose the cause of action, it can only be determined after recording evidence as to whether or not the land was purchased by the petitioner. Admittedly Mst. Mehr Taja, respondent, is one of the owner being widow of Dil Faraz and it appears that on 24-1-1985 her Special Attorney alongwith counsel appeared and filed written statement. Anyhow, we need not hazard an opinion at in such an early stage, for that will be for the trial Judge to decide the merits of the claim in Suit No,18/1. The learned Additional District Judge forgot to appreciate that he was not sitting as a Court of appeal against the judgment and decree dated 5-2-1985 but he was pondering over the proprieties of the orders passed by the Civil Judge dated 5-12-1977, dismissing the application under section 12(2), C.P.C. As such he was required to confine himself to the correctness/legality of the order impugned and not beyond that scope. He appears to have intermixed his power as a Court of appeal and as a Court of revision. Under section 115, C.P.C. He was required to see if the subordinate Court exercised a jurisdiction not vested in it by law or he failed to exercise the jurisdiction so vested or that in the exercise of its jurisdiction he acted illegally or with material irregularity. The judgment impugned in this petition of the learned Additional District Judge nowhere appears to be relevant with reference to A the requirements of section 115 of the C.P.C. He has transgressed his limits as a revisional Court by going into the bona fides of the original suit while in face he was required to decide the points involved in the petition under section 12(2), C.P.C.
And in case he found any lapse on the part of Civil Judge, in deciding the said petition, within the scope of section 115, C.P.C.,he could declare the original decree to be the result of fraud played upon the Court but not to go into the proprieties of the claim in the original suit while deciding the revision.
4. On the view of the matter that we take we hold that the learned Additional District Judge in his impugned judgment travelled beyond the scope of section 115, C.P.C. And drew conclusions on presumptions not supported by the record. Consequently this writ petition is accepted and the judgment of the learned Additional District Judge in Civil Revision No,13 of 1997 is declared as unlawful to the extent of rejection of plaint in Suit No,18/1 of 1985. Now the said suit would proceed and is to be decided by the trial Court in accordance with law.