2021 PLP 1575 (YLR)

MUHAMMAD NAEEM ANWAR, J.

Petitioners have assailed the judgment and order of learned Additional District Judge-V Nowshera, dated 24.10.2019, whereby their appeal was dismissed.

2. Necessary facts leading to the institution of this civil revision are that petitioners have filed a Suit No.545/1 on 25.09.2007 before the Civil Court Nowshera by seeking declaration therein that they being the legal heirs of Maqadam son of Iraq Shah are the sole owners of bearing Khasra Nos.138, 167, 140, 165, 168, 1169/139, 141 of the estate of Nowshera "Khurd" measuring 47 Kanal, 11 Marlas on the strength of registered deed No. 323 dated 18.07.1928 and that the consolidation proceedings whereby the total area of property was reduced to 23 Kanal, 11 Marlas instead of 47 Kanal, 11 Marlas, are illegal, against the fact, thus the same is ineffective upon their rights and liable to correction. As the consolidation proceedings were conducted by officers/officials of revenue hierarchy, therefore respondents Nos.1 to 4 along with private persons including respondent No.1 were arrayed in suit. All the respondents were proceeded ex-parte and after recording of ex-parte evidence, suit of petitioners was decreed on 05.06.2009. Respondent No.1 filed an application under section 12(2), C.P.C. on 17.01.2018, on the ground that decree in Suit No.545/1 dated 25.09.2007 is the result of fraud, misrepresentation of facts therefore the Mutation No.3323 dated 23.07.2010 is wrong, he prayed that decree in Suit No.545/1 be set aside and the suit be decided in accordance with law. Petitioners have submitted their written reply on different legal and factual objections. Learned Civil Judge after hearing the parties, on maintainability of application, held the application of respondents Nos.1 to be maintainable. Feeling aggrieved thereof petitioners have filed an appeal, however the same was dismissed on 24.10.2019, hence this petition.

3. Learned counsel for petitioner contended that they have filed suit in 2007,which, which was decreed in 2009, whereas the application under section 12(2) C.P.C. was filed on 17.01.2018, which was hopelessly time barred, could not be entertained but both the learned Courts below have ignored the law of limitation, whereby any such application could be filed within three years from the date of decree as such the impugned orders are against the law and the application filed by respondent No.1 deserves dismissal summarily. He also argued that respondent No.1 was not only party in the suit and was served properly, thus at the most he could file an application within 30 days under Order IX, Rule 13 of C.P.C.. Next, he contended that contents of application do not disclose cause of action thus being hit by Order VII, Rule 11, C.P.C., application could not be held maintainable to be proceeded ahead.

4. I have heard the learned counsel and perused the record.

5. It appears from record that respondent No.1 was arrayed as party in original suit as defendant at Serial No.33, thus the arguments of learned counsel that respondent No.1 being party was served, who could not file an application, though has got force, but when learned counsel was confronted that when respondent No.1 was served in original suit and then proceeded against ex-parte, he could not lay hands on any such document, summon, order sheet notice and submitted that no such record is available even in record room general as all the record was destroyed due to flood in District Nowshera in the intervening period and added that respondent No.1 is taking the benefit of non-availability of record of the case.

6. Be that as it may, at this juncture, when the respondent No.1 has categorically stated that he was not served with any summon/notice of the case, than in such circumstances the application could not be dismissed summarily, yes, if after recording of evidence it is proved that respondent No. 1 was served, the application would be dismissed. Next, submission of the learned counsel for petitioner that decree was passed in the year 2009 and application was filed in the year 2018, which is barred by time. Admittedly, respondent no.1 was party to the suit and now his application for setting aside ex-parte decree shall be seen within purview of Articles 164 and 181 of the Limitation Act, 1908, reads as under:- Article

164. Description of suit Period of Limitation Time from which period beings to run 1 2 3

164. By a defendant, for an order to set aside a decree passed ex parte Thirty days The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree. Article

181. Description of suit Period of Limitation Time from which period beings to run 1 2 3 Application for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908. Three years When the right to apply accrues. When it was alleged that he was not served and alleged in Para No.4 of the application that from the scrutiny of revenue paper, he got the knowledge, then obtained attested copy of the judgment on 28.04.2017 and filed the application on 17.01.2018, thus, till recording of evidence, the version of respondent No.1 shall be considered as correct. During the course of arguments, the contents of application were also gone through, which also discloses cause of action.

7. Lastly, the order impugned by the petitioner is an interlocutory order/interim order, which does not fall within the four corners of "case decided" for invoking the jurisdiction of Section 115 of Code of Civil Procedure, 1908, which for ready reference is reproduced as under:- "Section. 115 (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) To have exercised a jurisdiction not vested in it by law, or (b) To have failed to exercise a jurisdiction so vested, or (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, {The High Court may make such order in the case as it thinks fit.

8. Though, it has been settled by the Hon'ble Supreme Court that the expression "case decided" does not necessarily mean the decision of entire suit. It may relate to a decision on an interlocutory matter requiring the judicial mind. Reliance is placed on 1992 SCMR

718. Thereafter, in case titled "Neslle Milk-pack Limited v. Classic Needs Pakistan (Pvt) and 3 others" 2006 SCMR 21, Para-4 of which is reproduced as under: - "The expression 'case decided' is not necessarily confined to the final order rather it may, in the peculiar facts and circumstances of the case, relate to an interlocutory order passed at any stage of the proceedings including an interim order requiring application of judicial mind. It may be seen that an order passed in an improper exercise of jurisdiction if is not interfered, it may lead to injustice or hardship and if an interim order by its inception, appears to be a final order and also has an effect of final order, such an order can be corrected in the revisional jurisdiction." But in the instant case, intricate question of law and facts is involved, which requires recording of evidence by providing equal opportunity to both the parties, regarding which the Court has not yet given any clear verdict which could be held to be a case decided within the parameters of section

115. Reliance is placed on case titled Lake Filling Station and C.N.G Station v. Divisional Manager Messrs Pakistan State Oil Company Ltd. wherein it is held that:

4. It is admitted fact that the application for ad interim relief and the appeal are still pending adjudication before the learned Additional District Judge, Lahore. It is settled principle of law that revision petition is not maintainable against such type of interim order as it is not qualified the parameters prescribed under section 115 of C.P.C. as a case decided. In arriving to this conclusion, I am fortified by the law laid down in "Muhammad Ahsan-ullah Khan v. Muhammad Sami Ullah Khan" (PLD 1964 Lahore 101). The revision petition is maintainable against the final order or case decided, therefore, this revision petition is not maintainable, as per principle laid down in the following judgments:-- "Nawabzada Malik Habib-ullah v. The Pak. Cement Ind. Ltd." (1969 SCMR 965), "Mian Zafar Iqbal and others v. Bashir Ahmad Khan and others" (PLD 1987 Lahore 650) and "National Security Ins. Co. Ltd. v. Messrs Hoechst Pak. Ltd. and others" (1992 SCMR 718)." Thus, the order of the learned trial Court is well reasoned by holding the application as maintainable and the same could not be challenged in revision petition. The matter is still open for both the parties to prove their respective contentions as alleged by them in their pleadings.

9. Apart from the above, there are concurrent findings of both the Courts below which cannot be set at naught unless the same are perverse, illegal or suffering from jurisdictional defects.

10. For the reasons discussed above, this petition is hereby dismissed in limine. MH/369/P Revision dismissed.