2017 PLP 14 (CLCN)

IBAD-UR-REHMAN LODHI, J.

A decree, which was granted on 09.04.1973, was called in question by the present respondents herein by filing an application under section 12(2), C.P.C. in the year 1996. The learned trial Court, after recording of complete evidence of the parties on the issues framed, proceeded to dismiss the same vide order dated 15.05.1999, however, the Revisional Court reversed such findings and not only allowed the revision petition but also allowed the application under section 12(2), C.P.C. vide judgment dated 26.05.2004.

2. In para 4 of the application under section 12(2), C.P.C., the applicants pleaded that they got the knowledge of decree dated 09.04.1973 only 5-days prior to filing the application under section 12(2), C.P.C. In addition to other issues, issue No.2 was framed on the objection of the respondents regarding limitation.

3. Instead of dilating upon the merits of the case, I would first deal with issue No.2 which would certainly have bearing upon the adjudication on merits as to if the filing of application under section 12(2), C.P.C. is found to be beyond limitation then there would be no need to consider the case of the applicants on merits. When reply to the application under section 12(2), C.P.C. was filed by the respondents, they have categorically pleaded in corresponding paragraph-4 of their written reply that fact of the passage of decree was in knowledge of the applicants since 09.04.1973. When asked, the learned counsel for respondents/applicants have failed to provide any convincing material available on record to justify the delayed filing of the application under section 12(2), C.P.C. or to cover such inordinate delay of 23 years by proving the fact of getting knowledge of passage the decree on 09.04.1973 just 5-days prior to filing the application under section 12(2), C.P.C. in the year 1996.

4. Muhammad Hanif, one of the applicants, when appeared as AW.1 has deposed in his examination in chief as follows:- and while the said witness was being cross-examined, he deposed in the following manner: AW.4 Mir Hussain, when made a statement on 23.01.1999, deposed that he only got knowledge of the decree 5-months before and also that before such period of 5-months prior to 23.01.1999, he never appointed any counsel nor moved or signed any application.

5. The learned trial Court while giving findings on issue No.2 has held the application being hopelessly barred by time, but the learned Revisional Court while reversing such findings has held that, when fraud is proved in getting the decree, there would be no question of limitation arises and that in the case, in hand, the applicants have proved that they moved application under section 12(2), C.P.C. within limitation of three years from the date of knowledge. The learned Revisional Court has erred in law, for the reason, that; firstly as has been discussed above, the applicants have failed to establish that they obtained knowledge of the decree dated 09.04.1973 just 5-days prior to filing the application under section 12(2), C.P.C., which was filed in the year 1996, and secondly that the statements of AW.1 and AW.4 negated the version of the applicants themselves, while they have given a different point of time of obtaining knowledge of the passage of decree. The second ground, which prevailed upon the Revisional Court to adjudge the point of limitation in favour of the applicants is to the effect that, when fraud is established, then there would be no question of limitation, has also no substance for the reason that the limitation provided for moving an application under section 12(2), C.P.C. has been provided in residuary Article 181 of Limitation Act, and the same would be available to a person desirous to move the Court, passed a decree for recalling the same on the ground of fraud or misrepresentation allegedly played upon the Court in obtaining such decree, as such, the fact to establish a fraud or misrepresentation in this regard is an event to come at subsequent stage, when the Court after trial reached a conclusion as to the commission of any fraud or misrepresentation, but an applicant of an application under section 12(2), C.P.C. is not permitted to first determine himself that fraud has been committed and avoiding the limitation on the fact that since fraud has been committed, therefore, he is free from the fetters of limitation. If such practice is allowed to prevail it will be then left at the whims and will of the applicant to approach the Court even after decades. The judicial system must be brought in some discipline and it has to be regulated through some procedural regulations. If this is not done, we will have foul play every where instead of a fair play. The litigants must be aware that they are not allowed to play mockery with the judicial system.

6. The learned counsel for respondents with the help of the cases Hafeez Ahmad and others v. Civil Judge, Lahore and others (PLD 2012 SC 400) and Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304) has asserted that in appropriate cases by exercising suo motu jurisdiction, the Courts can condone the delay in filing the proceedings, but this Court finds nothing appropriate in favour of the applicants justifying suo motu exercise of power for condoning the delay in filing the application under section 12(2), C.P.C. The findings of the learned Revisional Court on issue No.2 are not supported with any law and are liable to be set aside.

7. As a result thereof, the findings of learned trial Court on said issue are upheld and resultantly the application under section 12(2), C.P.C., filed by the present respondents, is held as being barred by time and therefore, there is no need to dilate upon the merits of the case in such time barred matter. The findings of the learned Revisional Court are set aside. This petition is accepted and the findings arrived at by the learned Civil Judge on 15.05.1999 are restored and the application under section 12(2), C.P.C. stands dismissed. SL/S-34/L Petition dismissed.