1992 PLP 416 (CLC)

‑‑‑‑Ss. 12(2) & 115‑‑‑Setting aside decree on plea of fraud or misrepresentation‑‑‑Original suit could not be dismissed on account of pica of fraud or misrepresentation with regard to its adjudication but would be deemed to be pending, to be decided on merits, with opportunity to defendants to file their written statement, to be followed by list of witnesses and evidence of parties‑‑‑Judgments/orders and decrees of Courts below were upheld to the extent of setting aside of original impugned decrees which would be deemed pending to be decided on merits in accordance with law. Samiullah Jan for Petitioners. M. Sardar Khan, A.G. (N: W.F.P.) for Respondent No.1. Muhammad Riaz Khan for Respondent No.2 Date of hearing: 4th December, 1991. This revision petition arises in the background of facts that Suit No.68/1 of 1987 filed by Dilbar Khan etc. herein the petitioners against Government of N.‑W.F.P. through Collector, Kohat was decreed vide the judgment and decree dated 26‑4‑1987 by the Court of Mr. Mohammad Ibrahim Khan, Senior Civil Judge, Kohat. On 12‑11‑1987 Government of N.‑W.F.P. filed application for setting aside of the said decree on grounds of mis representation and collusion under section 12 (2), C.P.C. By his judgment and order/decree dated 10‑1‑1991 learned Senior Civil Judge accepted the application, set aside decree in Suit No.68/1 of 1987 and also proceeded to dismiss the suit. Dilbar Khan etc. the petitioners filed Appeal No.26/13 of 1991 in the Court of Additional District Judge, Kohat who by his judgment and decree dated 2‑6‑1991. dismissed the appeal in limine. Petitioners were accordingly obliged to further file Civil Revision No. 291 of 1991 in this Court as against the judgments and orders/decrees of the Courts below.

2. Petitioners were represented by Mr. Samiullah Jan Khan, advocate. Government of N.‑W.F.P was represented by Mr. M. Sardar Khan. Advocate -General and Kohat Development Authority was represented by Mr. Mohammad Riaz Khan, Advocate. After hearing the learned counsel for the parties and going through the record it was found that the impugned original decree dated 26‑4‑1987 was passed by Mr. Mohammad Ibrahim Khan, Senior Civil Judge, Kohat who by the passage of time was promoted, that he heard the appeal as Additional District Judge, Kohat against the order of the setting aside of the original decree and dismissal of the plaintiffs‑petitioners" suit latter order passed by himself as Senior Civil Judge. Perhaps it was not brought into his notice that he was sitting in judgment in appeal as against his own judgment and decree and he was barred to hear the appeal. If he himself would have gone through the original impugned judgment and decree which were set aside by the judgment and order/decree dated 10‑1‑1991 under appeal he must have become aware of the fact that the original impugned judgment and decree were passed by him. Thus his judgment and decree stand vitiated and case merits to be remanded for fresh decision by another District Judge/Additional District Judge. However, since the record has been received, this Court would proceed to dispose of the revision petition on merits. Nonetheless the learned Additional District Judge is cautioned, rather warned and admonished for the negligence.

3. Now as far as the provisions of section 12 (2), C.P.C. are concerned, the same pertain to the challenging of the validity of a judgment and decree by an application on plea of fraud, misrepresentation or want of jurisdiction. In case like the one that the original judgment and decree were set aside as obtained through misrepresentation and collusion because Naib Saddar Qanungo, Kohat was authorised to defend the suit by the Collector and he filed a written statement that since the defendants' rights were not being affected by the suit, hence the suit be decided in accordance with law and then the learned trial Court proceeded to record and pass the original impugned judgment and decree dated 26‑4‑1987 in the case. Accordingly the Provincial Government through a Government Pleader has later on rightly challenged the validity of the original judgment and decree mainly on ground of misrepresentation and collusion under section 12 (2), C.P.C. and, in the circumstances of the case the said judgment and decree were but to be set aside. The learned Senior Civil Judge, Kohat has, however, wrongly further proceeded by the same judgment and decree to dismiss the plaintiffs‑petitioners' suit. In fact, in such a position the decree was, no doubt, to be set aside on the plea of fraud or misrepresentation as in the instant case but on account of misrepresentation the suit cannot be dismissed and the same shall be deemed pending, to be decided on merits, with opportunity to the defendants to file their written statement, to be followed by list of witnesses and evidence of the parties. The learned Advocate‑General and the learned counsel for the Kohat Development Authority as well the learned counsel for the plaintiffs‑petitioners were to acknowledge and accept the legal proposition as enunciated above.

4. Consequently, this revision petition is accepted, the judgments/orders and decrees of the Courts below are upheld to the extent of setting aside of the original impugned decree dated 26‑4‑1987 in Suit No./68/1 of 1987, but the said judgments, decrees and orders of the Courts below are set aside to the extent of the dismissal of Suit No.68/1 of 1987 which shall be deemed pending to be decided on merits in accordance with law. Parties are left to bear their own costs throughout. AA./1271/P Case remanded.