1999 PLP 1516 (SCMR)

(i) that since three forums, namely, the Additional Commissioner in his order dated 31-5-1987, the Member, Board of Revenue in his order dated 25-2-1988, and a learned Single Judge of the Lahore High Court in his judgment dated 15-8-1989 recorded the findings on the following questions of facts: (a) that the appellant was a refugee from Jammu and Kashmir; (b) that he was a temporary aIllottee of land measuring 132 Kanals in lieu of the ration'; (c) that the appellant applied for the transfer of ownership for 115 Kanals and 17 Marlas of land, (d) that the appellant was transferred ownership in respect of 59 Kanals and 15 Marlas of land; and (e) that the appellant paid the price of Rs.3,440 on or 7-2-1981: the learned Judge in chambers could not have reversed the above finding of fact in exercise of jurisdiction under section 12(2), C.P.C. in a disposed of writ petition. (ii) That since the land in dispute was temporarily allotted to the appellant as refugee from Jammu and Kashmir, the same was excluded from the pool of the evacuee land allotable under Item No.IX of para. 4-A of the Rehabilitation Supplementary Scheme, Chapter 1, Part

1. Reliance was placed by him on the following cases: (i) Dost Muhammad and others v. Mst. Badal Jan and others (1976 SCMR 112); (ii) Muhammad Azim and others v. Ali Mohtashim and others (1994 SCMR 555). (iii) That the learned Judge in Chambers proceeded on wrong assumption that the appellant had manipulated new Khasra Numbers for suit land, which was contrary to the record. (iv) That the learned Judge in Chambers could not have entertained the above application under section 12(2), C.P.C. as the final determination on the question of fact was made by the Member, Board of Revenue in his order dated 25-2-1988.

5. On the other hand, Mr. Gul Zarin Kiani, learned counsel appearing for the private respondents has urged as follows: (i) That since final judgment dated 15-8-1988 was passed by a learned Single Judge of the Lahore High Court in Writ Petition No.411 of 1988, an application under section 12(2), C.P.C. was competent before the High Court; (ii) That in any case independent from the power contained in section 12(2), C.P.C. a Court or Tribunal has inherent power to recall its judgment/order if the same is obtained by practising fraud. Reliance has been placed by him on the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331); (iii) That non-party to a lis has the right independent to section 12(2), C.P.C. to come to Court and to seek relief on the ground that their rights have been affected; (iv) That since the private respondents were not parties to the proceedings in which impugned judgments/orders were passed and as their rights were affected, the learned Judge in Chambers could have treated above miscellaneous application under section 12(2), C.P.C. as the Writ Petitions. He placed reliance on the case , of Shivdeo Singh and others v. State of Punjab and others (AIR 1963 SC 1909 para. 8). (v) That the learned Judge in Chambers has recorded a finding of fact against the appellant to the effect that the documents relied upon by him are forged and that the documents produced by the private respondents are genuine and that they are allotees of the suit land prior to the appellant and, therefore, this Court would not interfere with the above finding of fact.

6. We would not like to express our views on the above various contentions as we intend to remand the case to the Chief Settlement Commissioner who may also be a Member, Board of Revenue for the reason that both the parties have produced documents indicating that they had interest in the suit land. However, we would like to examine the legal question as to, whether an application under section 12(2), C.P.C. could have been filed by the private respondents before the High Court.

7. The above question involves determination of two issues, namely, (a) which of the judgments/orders can be treated as a final judgment/order in terms of subsection (2) of section 12, C.P.C.; (b) whether a person who was not a party to the case/proceedings can file an application under section 12(2), C.P.C.

8. Raja Muhammad Anwar, learned counsel for the appellant, has contended that since under the Settlement Law the final forum provided for determining the entitlement to the suit land was the Member, Board of Revenue, the above applications under section 12(2), C.P.C. could have been filed before the Board of Revenue and not before the High Court.

9. On the other hand, Mr. Gul Zarin Kiani, learned counsel for the private respondents has contended that the final judgment or order in terms of subsection (2), of section 12, C.P.C. is that of the last forum which had passed the last order in series. According to him, if this Court refuses to grant leave against a judgment of High Court, the final judgment/order would be considered as of this Court and not of the High Court. Reliance was placed by him on the judgment of this Court in the case of Mubarak Ali v. Fazal Muhammad and another (PLD 1995 SC 564), in which a Bench comprising two learned judges has held that what is intended by section 12(2), C.P.C. is that a party must go to that Court which has finally decided the matter, if it desires to secure reversal of its judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. It has been further held that the word "final" con mean the last in a series of judgments, decrees or orders which may have been passed. In the above report the question at issue was whether the order permitting the withdrawal of two petitions seeking leave to appeal could be considered as a final order in terms of subsection (2) of section 12, C.P.C. In that context the following observation was made,. Had leave been refused after a proper appraisal, it may again have led to two final decisions, for this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have been assailed anywhere, while the decisions lasted- It is a different matter whether this Court would take up petitions filed under section 12(2), C.P.C. for disposal, considering that under Rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court unless expressly provided by the rules. Whether it would act in review under Order XXVI of the Rules, or under Rule 6 of Order XXXIII under its inherent powers to secure the ends of justice, or on the basis of observations contained in Abdul Majid's case PLD 1982 Se- 146 that a party who desires to show that a decision was obtained by fraud need not do so by separate suit, but may do so by moving the same Court, would depend upon each case separately. However, we are not confronted with this situation and notwithstanding the views expressed, we would leave the matter open."

10. However, it appears that in an earlier judgment of this Court rendered by a Bench comprising the then learned Chief Justice and the two companion Judges in the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1983 SCMR 1171) seemingly a somewhat contrary view was taken, as follows: "

4. It is well-settled that the provisions of the Code of Civil Procedure are applicable to Constitution petitions Tiled in the High Court. Section 12(2), C.P.C. being a part of it will be applicable. In this connection the next for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C., could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad (PLD 1991 SC 197), such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and, therefore, the application filed by the appellants there was competent. "

11. It may be pointed out that the judgment in the case of Mubarak Ali (supra), quoted hereinabove- does not lay down a broad propositi6n that simpliciter refusal of leave by the Supreme Court would constitute a final order for the purpose of section 12(2), C.P.C., but it is qualified with the condition "that this Court would have touched some matter which would have gone to the very foundation of the cases, which could not have, been assailed anywhere, whilst the decisions lasted". It was also clarified that this Court has discretion to take up or not to take up petitions filed under section 12(2), C.P.C. for disposal, considering that under Rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the rules or whether it would act in review under Order XXVI of the Rules. The above question was also left open. It may also be observed that even otherwise the above observations relied upon by Mr. Gul Zarin Kiani cannot negate what has been clearly held in the case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171) (supra). In our view, the law enunciated in the above case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (supra) reflects the correct legal position. If this Court merely reaffirms a judgment or order of a High Court by refusing leave, the final judgment in terms of subsection (2) of section 12, C.P.C. will be of the High Court and not of the Supreme Court. However, if the Supreme Court, reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purpose of subsection (2) of section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded by the forums provided under the Settlement Law.

12. Adverting to the second point formulated herinabove i.e. whether a person who was not a party to the proceedings in which the impugned order was passed could file an application under section 12(2), C.P.C. it may be pertinent to refer to the judgment of this Court in the case of Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCMR 662), in which inter alia the following has been concluded:-- "

6. The first point has already been decided by this Court in the case of Ch. Jalal Din v. Mst. Asghari Begum and others (1984 SCMR 586), wherein it has been maintained that persons not party to the suit can also file application under section 12(2), C.P.C., and the following passage from the Peshawar High Court's judgment in Abdur Rauf and others v. Abdur Rahim Khan (PLD 1982 Pesh. 172) was quoted with the approval: -- 'It is obvious that in section 12(2), C.P.C. the word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus, it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word ' person'. Had*the intention of the law-maker been to restrict the right of filing the application under section 12(2), C.P.C. only to the judgment-debtor or his successor- in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment-debtor or his successor-in- interest or -a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents. " We are in respectful agreement with the view taken in the above judgment. If a person in adversely affected by an order or judgment of a Court or Tribunal rendered in a proceeding to which he is not a party and to which proceeding C.P.C. is applicable, he can file an application under section 12(2), C.P.C. for the reason that the word "person" and not judgment debtor or his successor-in-interest or the words party to the suit, have been used as highlighted in the above report.

13. Adverting to the merits of the case, we are of the view that since both the parties have produced documents to show their title to the suit land as stated above, we allow the appeals in terms of the short order of even date which is incorporated as a part of this judgment and which reads as follows: For the reasons to be recorded later on the appeals are allowed. The judgment of the High Court is set aside. The case is remanded to the Chief Settlement Commissioner also acting a Member Board of Revenue inter alia to decide the following questions:

(i) Which of the parties is the first allottee of the suit land or any part thereof? (ii) Who is in possession of the suit land or part thereof and since when? (iii) Whether any of the parties has been allotted any land as a claimant in terms of para 23-A of the Rehabilitation Scheme, if so what is its effect? There will be no order as to costs." H.B.A./M-332/S Order accordingly