2026 PLP 892 (MLD)

Muhammad Najam-ud-Din Mengal, J.

The instant constitutional petition carries the following relief: It is therefore, prayed to this Hon ble Court may kindly be pleased to allow this Constitutional Petition and set aside the order dated 01.02.2024 passed by learned Majlis-e-Shoora Turbat in the large interest of justice and equity. Any other relief may be granted in the interest of justice, equity and fair play.

2. Facts of the case are that the on 16.11.2022, the petitioners moved an application under Section 12(2), C.P.C. before the Court of Qazi Turbat ( the trial Court ) for setting aside the judgment and decree dated 09th October 2020 with the plea of obtaining the impugned judgement and decree dated 9th October 2020 by the plaintiffs, is the product of misrepresentation and fraud, thus prayed for setting-aside the same. Anyhow, the respondents/plaintiffs filed rejoinder to the application and after hearing the arguments, the trial Court allowed the application, vide order dated 22nd August 2023 with direction to reregister the case file, bound the learned counsel for the parties to appear before the Court on 05.09.2023 with further direction to the respondents/plaintiff to file amended suit, after impleading the petitioners in the suit.

3. Subsequently, the respondents/plaintiffs approached the learned Majlis-e-Shoora, Mekran at Turbat by filing a Civil Revision Petition (the revisional Court ), and after hearing the parties, the revisional Court allowed the revision petition vide order dated 1st February 2024 and set aside the order dated 22nd August 2023 passed by the trial Court. Whereafter, the petitioner approached this Court through the instant Constitutional Petition.

4. Learned counsel for petitioners argued that a well-reasoned Order was passed by the learned trial Court, but without any legal footings, the learned Majlis-e-Shoora reversed the same and whilst doing so serious illegality and irregularity was committed; that the learned Revisional Court has misunderstood the actual position of case and even has failed to properly interpret the relevant provisions of law; that in the first round of litigation the petitioners were listed in the category of plaintiffs and since in the first round of litigation, there were 32-plaitniffs, as such, all the plaintiffs including the petitioners appointed Kohda Assa and Muhammad Saleh as their attorneys to file pleadings and pursue the proceedings before any competent Court of law, but the attorneys after withdrawal of the suit, intentionally and deliberately did not mention the name of petitioners in the array of plaintiffs and in a fraudulent manner obtained the judgement and decree from the trial Court, while the petitioners were under the impression that their case is being pursued by the attorneys, thus being obtained with fraud and misrepresentation, rightly the trial Court recalled its earlier judgement and decree; that the learned Majlis-e-Shoora has failed to consider this legal aspect of the case that the petitioners are also shareholder in the suit property and without arraying him in the proceedings, no effective decree will be executed; that the impugned Order is perverse and contrary to material available on record.

5. Learned Counsel for respondents while supporting the impugned Order of the Court below stated that the learned Majlis-e-Shoora rightly setaside the Order of the trial Court, as the latter without considering the actual facts and circumstances of the case that it was the responsibility of the petitioners to be vigilant to pursue their case and if they were not listed in the array of plaintiffs, they immediately should have approached the trial Court by filing an application under Order I Rule 10, C.P.C, but they did not do so and waited till the decision of the case and after obtaining judgement and decree in their favour by the plaintiffs, the petitioners approached the trial Court, thus the petitioners are not entitled for any relief at this stage, which fact was rightly appreciated by the appellate Court; that no element of misrepresentation was pleaded in the application under section 12(2), C.P.C. nor during the course of arguments any substance was brought before the trial Court, thus the findings of the trial Court in respect of alleged fraud and misrepresentation are based on presumptions.

6. Heard the learned counsel for parties and with their able assistance perused the available record. Before dilating upon the legal position of the case, it would be appropriate to first discuss the facts of the case to better understand the reasons of filing application under Section 12(2), C.P.C. The perusal of record transpires that initially on 10th December 1997 a power of attorney was executed by the petitioners and other co-sharers in favour of Zarif and Faiz Muhammad to be their attorney to file or withdrawn any pleading before the Civil Courts, High Court or before the Revenue hierarchy in respect of ancestral property. On the basis of said power attorney, the attorneys filed a suit before the learned Qazi Turbat. Anyhow, after instituting the case, proceedings were commenced and even at some occasion the matter went up to the appellate Courts and remand orders were also passed, but the fact remains that in all the proceedings the petitioners along with co-sharers were named as contesting party. During trial of the case, the suit was amended and again the petitioners remained in the array of plaintiffs. Besides, on certain occasions in case of passing any adverse order, the appellate Court was approached, wherein once again the name of the petitioners were mentioned as a party to the proceedings. However, prior to final disposal of case by the learned Qazi Turbat, the suit was withdrawn with permission to file a fresh suit, but in the newly fresh instituted suit, the petitioners were not made a party to the proceedings, while they were under the impression that since they have already executed power of attorney in favour of attorneys and the said attorneys are pursuing the case. However, the attorneys excluding the names of petitioners and after trial, obtained judgement and decree dated 9th October 2020 in their favour and the petitioners are claiming the said judgement and decree dated 9th October 2020 as the product of fraud and misrepresentation.

7. On coming to know about passing of above judgement and decree by the trial Court and missing their names in the suit and judgement, the petitioners immediately approached the trial Court and apprised the entire situation by filing an application under Section 12(2), C.P.C. and prayed for setting aside the judgement and decree dated 9th October 2020. The trial Court rightly appreciated the legal position of the case by setting-aside the impugned Order, but the learned appellate Court without considering the legal aspect of the case has wrongly interfered in it and set-aside the Order of the trial Court, which otherwise is well-reasons. As discussed above, the petitioners were already party in the first round of litigation, thus they cannot be delisted from the proceedings by the attorneys without any cogent or lawful reason, when otherwise it has been established on record that the petitioners as well as the other plaintiffs of the suit are the shareholder in the same property, which was devolved upon them from their forefathers, thus as to how any effective decree could be passed without impleading them in the proceedings and even if the trial Court kept in field its earlier judgement and decree, then at the time of execution, again third party interest would be accrued, thus it would be in the best interest of justice and parties that all the shareholder shall be impleaded in the proceedings. Similar nature of case has come up for hearing before this Court in case titled as Muhammad Umar and others v. Hamid Hamza and 4 others, reported in 2017 CLC

699. For facilitation, the relevant portion is reproduced herein below:

4. We have heard the learned counsel for the parties and perused the record of the case. The respondent No.4 had challenged the judgment and decree dated 21st February 2009 passed by the trial Court. The respondent No.4 while filing application had annexed documents/ previous suits filed by the predecessor of the petitioners indicating the facts that Syed Muhammad had filed previous suits in respect of same Khasra numbers, wherein the facts related to sale of the properties were also mentioned. Since these documents were judicial record of the Court and there was no controversy between the parties in this respect, therefore, consideration of the trial Court in respect of concealment of facts and fraud on the part of the predecessor of the petitioners are based on the documents, to which presumption of truth was attached, even otherwise, there was no need of framing issues in this respect. It appears that the trial Court after considering the legal and factual aspects of the matter had passed the impugned order and found that the respondent No.4, being necessary party in the suit, was not impleaded, and thus, a valuable right of the respondents was infringed, therefore, acceptance of the application under section 12(2), C.P.C. and setting aside of the judgment and decree dated 21st February, 2009, culminates revival of the suit to entitle the parties to contest the same on merits and gets a decision in accordance with law. The learned counsel for the respondent No.4 submitted that since there was sufficient material on record, therefore, the trial Court while deciding the application under section 12(2), C.P.C. has rightly not revived the suit.

8. So far as the contention of the learned counsel for respondents, that in the earlier suit the petitioner challenged the mutations of 67 Khasras, but in the fresh suit, he challenged 20-Khasra, thus both the cases are different and are not interlinked with each other. Be that as it may, when the plaintiffs filed fresh suit, they also given the reference of earlier suit, the plaintiffs withdrawn the same with the permission of filing a fresh suit by the order of Court, vide order dated 29.01.2010. Meaning thereby that the fresh suit is the continuation of earlier suit, otherwise no reference of previous suit could be mentioned in the newly instituted suit, thus the contention of the learned counsel for the petitioner is without any force.

9. It has been established that the petitioners are necessary parties in the suit being filed in respect of ancestral property, thus the trial Court has rightly set-aside its own judgement and decree after accepting the application under Section 12(2), C.P.C., but the learned Majlis-e-Shoora has wrongly setaside the Order of the trial Court passed on the application under Section 12(2) C.P.C.

10. For the above reasons, the petition is accepted and the impugned Order dated 01.02.2024 passed by learned Majlis-e-Shoora Turbat, is set-aside. The trial Court is directed to commence with the proceedings of the case, once amended title of suit is filed and to decide the same expeditiously in accordance with law. MQ/112/Bal. Revision allowed.