2023 PLP 355 (YLR)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the petitioner has called in question judgment and decree dated 28.11.2019 passed by Additional District Judge, Kot Momin, Sargodha, whereby while allowing the appeal filed by respondents Nos. 3 and 4 against respondent Nos. 5 to 10, the suit for possession under Section 9 of the Specific Relief Act, 1877 ('Act') filed by respondents Nos. 3 and 4 has been decreed against the said respondents by setting-aside the order of the trial court dated 27.07.2018 whereby the said suit had earlier been dismissed by the trial court and has also called in question judgment dated 10.03.2022 passed by same court, whereby an application under section 12(2), C.P.C., filed by the petitioner to challenge the decree dated 28.11.2019 has been dismissed.

2. It is contended by learned counsel for the petitioner that the petitioner was owner of the suit property, therefore, the suit for possession filed by respondents Nos. 3 and 4 without impleading him (i.e. petitioner) as a party was not maintainable and consequently the decree passed by appellate court was liable to be set-aside.

3. The suit filed by respondents Nos. 3 and 4 was a suit for possession under section 9 of the Act which relates to a suit by a person who has been dispossessed without his consent of the immovable property, otherwise than in due course of law to recover possession thereof notwithstanding any other title that may be set up as defense in the said suit. The said suit was filed against respondents Nos. 5 to 10, out of which respondents Nos. 9 and 10 are real sons of the petitioner who vehemently contested the said suit before the same was decreed by the appellate court by reversing the decision of trial court. The petitioner did not associate with proceedings at that stage despite the fact that his sons were contesting the aforementioned suit and after the same was decreed, he filed an application under section 12(2), C.P.C. on the ground that he had not been impleaded as a party which application has been dismissed vide order dated 10.03.2020. The operative part of the impugned order passed by the appellate court is reproduced below: 'Hence from bare perusal of the aforesaid provision of law, it manifests that such suit can be instituted by a person, who has been dispossessed of immoveable property without his consent and otherwise than in due course of law, against the person/s who had dispossessed him of such immoveable property. This pro-vision of law also categorically reflects that nothing in this section shall bar any person from suing to establish his title to such property and to get restored its possession, from the plaintiff of such suit. In the instant case, as according to the stance of the respondents Nos. 1 and 2, the petitioner was not included in the persons, who had dispossessed him from the disputed property, therefore, neither the petitioner was necessary party to the lis, nor was it incumbent upon the respondents Nos.1 and 2 to implead him as party in the suit. Moreover, passing of impugned judgment and decree does not bar the petitioner to institute a suit to establish his title qua the suit property and to get recovered its possession from the respondents Nos. 1 and 2 through due course of law. It is also worth mentioning here that admittedly Muhammad Pervaiz and Zahid, sons of the present petitioner, were arrayed as party to the lis and they have vehemently contested such suit, therefore, it is unbelievable one that while living with his aforesaid sons, the petitioner would have remained unaware of the proceedings, which had started on 27.04.2015 against his sons and others regarding the disputed property, therefore, it appears that with certain ulterior motives, just to prolong the proceedings, baseless application has been submitted by the petitioner, therefore, there is no need to frame issues or to record evidence in this case. Resume of the above discussion is that the instant petition being devoid of any force is hereby dismissed..

4. The appellate court has taken into consideration in the said portion of the order all the relevant grounds now being raised by the petitioner to reach the conclusion of fact that the petitioner had throughout been aware of the proceedings initiated against his real sons, with whom the petitioner is residing. Apparently the petitioner has been indolent in pursuing the matter despite the fact that his real son was contesting the same and he could have filed an application for being impleaded as a party, if he so desired. Mere claim of the petitioner based on ownership of the property and not being impleaded as a party in the given circumstances of the case is not sufficient to set-aside the said order on the grounds raised by the petitioner as for the purpose of application under section 12(2), C.P.C. the petitioner had to show that he was not impleaded as a party through fraud or misrepresentation or the court lacked jurisdiction to decide the matter resulting in the impugned order, which is lacking in the present case.

5. In fact the counsel for the petitioner has tried to argue that the case of the respondent Nos. 3 and 4 is not made out even on merits and the decree was liable to be set aside. This might be a ground to challenge impugned order before higher forum but the same cannot be made basis for setting aside a decree by filing an application under section 12(2), C.P.C., wherein only the grounds of fraud, misrepresentation and absence of jurisdiction can be agitated and no ground beyond the same can be allowed. Reliance in this behalf is placed on Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others (2003 SCMR 1050), wherein it has been observed as under: "The contention of learned counsel that the exchange agreement, dated 12.2.1948 would not be enforceable through the civil suit in respect of the evacuee property and that the suit was barred by section 113 of the Limitation Act, 1908 being not relevant for setting aside the judgment and decree under section 12(2), C.P.C. the same would need no comments. The scope of this special provision can neither be extended beyond the grounds of fraud, misrepresentation and defect of jurisdiction enumerated therein nor the learned Division Bench of the High Court, seized of the matter, could sit over the judgment passed in Letters Patent Appeal." (emphasis supplied)

6. Reliance in this behalf may also be placed on case titled Subedar Sardar Khan through Legal Heirs and another v. Muhammad Idrees through General Attorney and another (PLD 2008 SC 591), where in it has been held that decree could be set aside only on the grounds stated in section 12(2), C.P.C. and where no case of fraud or misrepresentation was made out and ground for setting aside the decree was not at all such a ground as envisaged by section 12(2), C.P.C. but pertained to merits of the case, application under section 12(2), C.P.C. was liable to be dismissed. In this scenario the other grounds raised by the petitioner could be raised through other proper proceedings but not through application under section 12(2), C.P.C., therefore, this Court has refrained from commenting upon the same lest it may prejudice any other remedy available to the petitioner. The title of the petitioner to the suit property, as claimed by him, did not require him to be impleaded as party to suit under section 9 of the Act as the suit was required to be filed against persons who had dispossessed respondents Nos. 3 and 4/plaintiffs whereas no such ground was raised against the petitioner. It is also not the claim of the petitioner that the decree was obtained by respondents Nos. 3 and 4 in collusion with his sons to deprive him of possession of suit property. In these circumstances, non impleading of petitioner as party to aforementioned suit for recovery of possession cannot be held to be based on fraud and misrepresentation and by the passing of the impugned order, the petitioner has also not been rendered remediless as he still has remedy of filing a suit for possession on the basis of title available to him, if he can establish the same. Consequently, no illegality or jurisdictional defect appears to be apparent on the record to interfere in the impugned order, whereby application of the petitioner under section 12(2), C.P.C. having failed to establish fraud, misrepresenta-tion or lack of jurisdiction, has been dismissed.

7. For what has been discussed above, this petition being devoid of any force is dismissed. MHS/A-99/L Petition dismissed.