1. CH. IJAZ AHMAD, J.--- The brief facts out of which the present application arises are that Mst.
2. Shamsun Nisa, etc. filed a Writ Petition No. 17579/1993, which was fixed before this Court on 26.12.1993. Respondents were directed to submit report and parawise comments within two weeks and parties were directed to maintain status quo in the meanwhile. The present applicant filed Civil Misc. Application No. 2983 application under Order 1, Rule 10 read with Section 151, CPC on behalf of Kanwar Niamat Ali son of Taj Muhammad to be impleaded as respondent as a necessary party through Mr. S. Tasawar Hussain Bukhari, Advocate alongwith C.M. No. 2984/96, with the prayer that filing of certified copies of Annexures be dispensed with. The aforesaid applications were fixed before this Court on 29.10.1996 and the following orders was passed:- "Notice to the parties was already on the record."
3. The main writ petition was fixed on 10.11.1996 and the impugned notice challenged by the original petitioner was declared as without jurisdiction, illegal and ma/a fide and the writ petition was accepted with costs. This application was filed by the present applicant on the ground that the applicant had moved an application to be impleaded as party yet his name did not appear in the cause list and his application was not listed therefore, main writ petition was decreed in his absence.
2. The learned counsel of the applicant submits that it is the duty of the office to send notice to the applicant or his counsel regarding fixation of a case but the office did not adopt this method, therefore, grave injustice was done with the applicant. He further submits that it is the duty of the counsel of the parties to point out this fact to the Court on 11.10.1996 that applicant had already moved application to be impleaded as party in the main writ petition. He further submits that applicant was a necessary party as the property in question was purchased by the applicant from L.D.A. in open auction in 1983. The applicant is also in possession of the property in question. He further submits that on account of the mistake of the office which occurred inadvertently resulted in miscarriage of justice and valuable rights of the applicant though no blame can be placed on the applicant. He further submits that order dated 10.11.1996 reveals that neither this Court nor the counsel for the parties appearing on the side date were cognizant of the fact that on the previous date of hearing on 29.10.1996. Notice was issued to the parties already on the record on the application of the applicant. He further submits that no body should be penalized by the act of the Court. He summed up his arguments that application is maintainable in terms of the law laid down by the superior Court. In support of his contentions, he relied upon following judgment Ch. Muhammad Javed v. The Chairman Union Committee, Lahore, (1999 YLR 2399), Mst. Umat-ul-Bano v. Ghulam Muhammad and others. (1999 SCJ 612).
3. The learned counsel of the original petitioners submits that application under Section 12(2), CPC is not maintainable as the applicant has alternative remedy either to file a review petition or to file a petition before the Honourable Supreme Court. In support of his contentions, he relied upon Subedar Muhammad Hussain v. Mst. Shah Begum and others (1990 MLD 2100). He further submits that ingredients of Section 12(2), CPC are not attracted as no fraud and mis-representation was pointed out by the learned counsel of the applicant played by the original petitioners with this Court. He further submits that property in question was allotted to the predecessor-in-interest of the original petitioners on 3.5.1982 and as such the alleged allotment to the applicant subsequently was valid and conveyed no right to him. He further submits that applicant has filed this application to 'frustrate the judgment of this Court. He further submits that applicant did not file this application with clean hands. Mian Muzaffar Hussain, learned counsel of the L.D.A. submits that application is liable to be dismissed as the ingredients prescribed in Section 12(2), CPC are not attracted. He further submits that general allegations of misrepresentation or fraud are not sustainable in the eyes of law.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
4. 5.It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:-
(i) Original petitioner filed writ petition on 23.12.1993 without impleading the applicant as respondent;
(ii) The applicant filed C.M. No. 2983/96 to be impleaded as respondent in the titled writ petition allegedly on the ground that applicant is owner of the property in question and is in possession of the property in question.
(iii) This Court passed the order on 29.10.1996 in the aforesaid application.Notice to the parties already on record.
(iv) The writ petition was fixed for final hearing on 10.11.1996.'
5. In the interest of justice and fairplay office was directed to produce the Peshi Register for the said date which reveals that Writ Petition No. 17579/93 and C.M. applications alongwith the names of the Advocate is issued to the following effect by the office:- WP-LDA 12010-93 Mst. Zubaida Khatoon v. Province of Pb, etc.MUHAMMAD Arif Ch., A.A.-G.M. Arif Ch. Shahzad Shaukat Civil Misc(Writ) in 1-93 Mst. Zubaida Khatoon v. Province-do- of Pb, etc WP-LDA 12010-93 Civil Misc 2-93 2-93 Mst. Shams-un- Nisa Province of Pb.,in etc-do- WP-LDA 17579/93 Petition in 17579/93 WP-LDA 17579-93 Mst. Shamas-un - do- Nisa v. Province of Pb., etc.-do- it is pertinent to mention here that C.M. No. 2983/96 was not fixed on the said date and the name of the applicant's counsel was also not mentioned in the cause list. For the purpose to resolve the controversy between the parties, I intend to reproduce Section 12(2), C.P.C.
6. "Sec. 12(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdic or, he shall seek his remedy by making an application to t. e Court which passed the final judgment, decree or order and not by a separate suit."
7. Mere reading of the afore-said provision of law prescribe following ingredients for maintainability of the application:-
(i) Plea of fraud,
(ii) Misrepresentation,
(iii) Want of jurisdiction.
8. Admittedly' first two ingredients are not attracted in the present case but the 3rd ingredient is attracted in view of the law laid down by the Honourable Supreme Court in the case of Mst. Nigar Bibi and others Vs. Salahuddin Khan and others (PLJ) 1990 S.C. 42). The relevant observation is reproduced as under:- "We have heard the learned counsel for the parties. The learned Judge in his Chambers disposed of the matter with the following observation:- "After considering the arguments of both the sides I am of the considered view that if no provision of C.P.C. is specifically made applicable the Court is duty bound to recall an order if it is found that the same was passed on a date when all the parties were not duly served. The rulings cited by the learned counsel for the appellants/respondents fully support the contentions of the learned in that behalf and there can , be no 2 opinions about this proposition. Since the applicants respondents according to record were not served for 4.5.1985, therefore, I am duty bound to recall the order dated 4.5.1985 and restore the Civil Revision to its original number for adjudication on merits after hearing both the parties."
9. As the case stands, the learned counsel for the appellants has failed to pursued us to come to a Conclusion different tram the one arrived at by the learned Single Judge as per the impugned order. We have perused the notices bearing No. 3994/g and 2989/g, dated 15.4.1985 addressed by the Deputy Registrar, High Court, Multan Bench to the Senior Civil Judge, Dera Ismail Khan and Multan, in Civil Revision No. 186/1985. These notices nowhere indicate that the hearing of the case was fixed for 4.5.1985 and that the respondents were served for the said date i.e. 4.5.1985. The learned counsel for the appellants did not dispute this position at all. So it has become absolutely clear that the respondents were not served for appearance in the High Court on 4.5.1985. The notice in C.M. No. 602/C-85 in C.R. 186/85 titled Mst. Nigar Bibi Vs. Salahuddin Khan was issued by the Deputy Registrar on 14.4.1985 but it conveyed the following order:- "DOTH ORDER that you be and are hereby this notice too did not give a slightest indication that the respondents were to be served for 4.5.1985 for further hearing. Thus, since the respondents were not served for appearance in the High Court on 4.5.1985, therefore, they could not be proceeded against ex parte and the order so made by the Court was obviously one without jurisdiction. As the error in passing the ex parte order against the respondents by the learned former Judge was apparent on the face of the record, therefore, in our view, the latter Judge was fully justified inrecalling the order dated 4.5.1985."
10. It is also settled principle of law that the application under Section 12(2), C.P.C. should have been considered on merits instead of dismissing the same on the technical grounds that no application under Section 12(2), C.P.C. was maintainable. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Muhammad Yasin's case (PLJ 1993 S.C. 103). It is also settled principle of law that no party should be penalized by the act of the Court as per principle laid down by the Division Bench of this Court in the case of Mian Irshad All Vs. Government of the Pakistan through Secretary, etc. (PLD 1975 Lahore 7). It is also settled principle of law that no body should be penalized by the inactions of the public functionaries as per principle laid down by this Court in the case of Ahmad Latif Qureshi Vs. Control* of Examination, Board of Intermediate and Secondary Education, Lahore and others (PLD 1994 Lahore 3). The contentions of the learned counsel of the original petitioners that application under Section 12(2), C.P.C. is not maintainable on the basis of the law laid down by the D.B. of this Court in Subedar Muhammad Hussain's case supra has no force in view of the law laid down by the Honourable Supreme Court in Province of the Punjab Vs. Muhammad Irshad Bajwa (1999 SCMR 1555). The relevant observation is as follows:- "On the contrary, there is a direct judgment of this Court against view what has been canvassed by the learned counsel for the petitioner/applicant. In case of Secretary, Ministry of Religious Affairs and Minorities and two others Vs. Syed Abdul Majid (1993 SCMR 1171) inter alia the following was held:- "It is well-settled that provision of the Code of Civil Procedure are applicable to Constitution petitions filed in the High Court, Section 12(2), C.P.C. being a part of it, will be applicable."
11. In view of what has been discussed above, the application is accepted and the judgment of this Court is recalled. C.M. is disposed of, meaning thereby that the writ petition filed by the original petitioners and the Application No. 2983 filed by the applicant to be impleaded as party shall be deemed to be pending adjudication. Office is directed to fix he main writ petition and C.M. No. 2983/96 and C.M. No. 2984/996 on 20.2.2002.
12. C.M. No. 2/97.
13. Parties are directed to maintain status quo till the final on of the main writ petition.
14. C.M.Nos. 3 & 4/97.
15. These C.Ms. have become infructuous in view of the order passed in C.M. No. 2/97.