P L D 1996 Peshawar 25 (PLP)

Muhammad Ismail Qureshi for Respondent. Date of hearing: 27th November, 1995. Pertaining to a joint right in `Shamilat Deh' of Wand Gul Noor Khel, Wand Momin Khel and Wand Shati Kati of village Garoori, Tehsil and District Karak, Muhammad Ilyas son of Mir Samand and 6 others brought a suit against Government of N.W.F.P. wherein Darya Khan son of Mirza Khan and Ahmed Noor son of Mir Gul were also arrayed as defendants. The suit was decreed by the learned Senior Civil Judge, Karak in favour of the plaintiffs on 5-7-1993. Appeal against the said order also failed before the learned District Judge, Karak on 6-12-1993.

2. Subsequently on 19-4-1994 one Zar Wali son of Umar Khan of village Garoori filed an application before District Judge, Karak under section 12(2) of the C.P.C., which petition was summarily dismissed by the learned District Judge on 27-6-1994 and hence this revision by Zar Wali.

3. The order of dismissal impugned before this Court, was based on two factors. Firstly, that the petitioner though challenging the decree dated 5-7-1993 of the Senior Civil Judge, had not challenged the decree dated 6-12-1993 of the District Judge. Secondly, that it was not maintainable on merits as well.

4. So far as the first ground of dismissal is concerned, it was not tenable because the very fact that the petition was filed before the District Judge indicates that the applicant was conscious of the fact that the Court that passed the final decree was the one to have been resorted to. When the petitioner already was before a proper forum, he could have been asked or given time to amend the petition so as to include the final judgment of the District Judge as well. It was not a blunder but a simple mistake for which the Court could have given the time to the petitioner.

5. So far as the merits are concerned, a perusal of original file would suggest that it was a representative suit under Order 1, Rule 8 of the C.P.C. It is to be seen as to whether the necessary, conditions under the said Order had been complied with. The first condition thereunder was that the persons interested in the suit must be numerous. The lists of owners of all the three `Shamilats' annexed to the plaint would suggest that the persons interested were certainly numerous. The second necessary ingredient is that they must have a common interest in the suit. The very fact that the suit pertained to certain rights in `Shamilat Deh', is sufficient to observe that they all had common interest.

6. The third ingredient of a representative suit is that `permission of the Court to file a suit under Order 1 Rule 8 must have been obtained. The order dated 10-4-1988 on an application to that effect would indicate that such permission was expressly granted. The last ingredient of the order is that a notice must have been given to all the persons interested. In this connection it is but generally known that numerous persons in a representative suit cannot be served personally. In case such service is not possible, the Court is empowered to issue notice by public advertisement. In the circumstances of each case, it is left to the discretion of Court to determine the mode of public advertisement and it could be by beat of drum as well. In the instant case the Court has resorted to public advertisement through beat of drum. Notice issued in this behalf is available on file. The publication fee in this respect was deposited by the plaintiffs and report of bailiff that such proclamation was made through the drummer Gulab Zaman is also on file. In the circumstances there was nothing wrong with the mode of service as well and hence the provisions of Order 1, Rule 8, C.P.C. had rightly been complied with.

7. The name of the petitioner Zar Wali in the attached list of Wand Momin Khel is available at Sr.No.104 and, therefore, in view of the service effected, one cannot say that he was condemned unheard. Moreover, any irregularity to that effect does not fall within the ambit of fraud or misrepresentation as envisaged under section 12(2), C.P.C. The plaintiffs had neither brought a suit in person nor had suppressed the name of the petitioner Zar Wali. The procedure cannot be dubbed either as fraud or misrepresentation. The petitioner also has failed to give the details of fraud or misrepresentation in his application under section 12(2), C.P.C. His only contention seems to be that he was not heard, whereas, in a representative suit the personal hearing of each and every person is even otherwise not possible.

8. Numerous persons in the instant case have practically appeared before the Court and had submitted application that they would defend the matter personally and thus stood impleaded as defendants. The petitioner also could have availed such opportunity. Anyhow, nothing in the instant case has been suppressed by the plaintiffs nor -any decree was obtained by playing fraud either on parties or on Court and nor any misrepresentation had been done by keeping the petitioner or anyone in dark. As mentioned earlier, the nature of misrepresentation and the nature of fraud has not at all been given.

9. In the circumstances, the learned District Judge with reference to merits of the case had rightly dismissed the petition under section 12(2) of the C.P.C. summarily The revision petition is hereby dismissed with no order as to costs. A.A./1873/P Revision dismissed.