2019 PLP 1101 (YLR)

ALI BAIG, J.

Through the instant writ petition the petitioner has called in question the validity and propriety of the impugned judgment/ decree dated 20.4.2016 passed by the learned Additional District Judge Gilgit, whereby the learned 1st Appellate Court has dismissed the Civil Revision Petition No.05/2016 filed by the present petitioner by upholding the judgment/ decree dated 30-11-2015 passed by the learned Civil Judge 1st Class, Gilgit.

4. The litigation between the parties started in the year 1972, when the present respondent No.1/plaintiff namely Muhammad Essa son of Mirbaz filed a suit for declaration and possession of certain suit land against the present petitioner/defendant in the trial court. The aforesaid suit of present respondent No.1/plaintiff was decreed in his favour vide judgment/decree dated 28-4-1975.

5. The present petitioner/defendant had filed civil first appeal in the court of the learned District Judge, Gilgit against the judgment/decree passed by the learned trial court. During pendency of civil first appeal, the present petitioner/defendant had appeared before 1st Appellate Court and has withdrawn her appeal on 28.6.1981.

6. The present petitioner/defendant filed an application under section 12(2), C.P.C. in the learned trial court on 16.5.2013, which was dismissed by the learned trial court vide judgment/decree dated 30-11-2015 after conducting full trial. The petitioner/defendant had also filed a civil revision petition in the court of learned Additional. District Judge, Gilgit which was also dismissed by the learned Ist Appellate Court vide impugned judgment/decree dated 20-4-2016, hence this writ petition.

7. The learned counsel appearing on behalf of the petitioner/defendant contended that the impugned judgment/ decree passed by the learned Additional District Judge, Gilgit is contrary to law and facts on the record of the case as such the impugned judgment/decree is not maintainable and liable to be set aside. The learned counsel for the petitioner/ defendant further argued that the petitioner has not appointed her husband namely Muhammad Shafa as her attorney and the petitioner had no knowledged regarding institution of suit against her as no summon was served upon the petitioner/defendant, hence the respondents/defendants have obtained the decree in their favour from the trial court by means of fraud and misrepresentation which is liable to be set aside.

8. Conversely, the learned counsel for the respondents/defendants supported the impugned judgment/ decree passed by the learned Addl. District Judge, Gilgit by contending that the present petitioner/ defendant had knowledge regarding institution of suit as soon after passing of the judgment/decree by the learned trial court against the petitioner, the attorney of the petitioner had filed civil first appeal in the 1st Appellate Court and summons was also served upon the petitioner/ defendant as evident from the report of Process-Server. The learned counsel for petitioner/ defendant further argued that the petition filed by the petitioner under section 12(2), C.P.C. was hopelessly time barred, as the petitioner/defendant had filed the petition under section 12(2), C.P.C. on 16-5-2013, whereas the suit was decreed by the learned trial court on 28-4-1975 and the petitioner/defendant has filed the aforesaid petition after lapse of more than 38 years of the passing of the judgment/decree by the learned trial court.

9. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance.

10. Since the petitioner/defendant has filed the petition under section 12(2), C.P.C. in the trial court, therefore, for ease and convenience we would like to reproduce the contents of section 12(2), C.P.C. as under:-- SECTION 12(2):--Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seeks his remedy by making an application to the court which passed the final judgment, decree or order and not by a separate suit.

11. From plain reading of contents of above said provisions of law it reveals that petition under section 12(2), C.P.C. can be filed on the following three grounds:-- (a) Fraud, (b) misrepresentation and (c) want of jurisdiction.

12. In the present case the petitioner/ defendant has filed the aforesaid petition on the grounds of misrepresentation and fraud.

13. Admittedly, as no limitation is provided for filing of petition under section 12(2), C.P.C., hence residuary Article 181 of the Limitation Act is applicable, wherein period of 3 years is provided for filing of any such application. But we are afraid that the present petitioner/defendant has filed the application under section 12(2), C.P.C. after lapse of more than 38 years of passing of the judgment/decree as suit of the respondent No.1 /plaintiff was decreed on 28-4-1975, and the application under section 12(2), C.P.C. has been filed in the trial court on 16-5-2013. The present petitioner/defendant was represented by her husband namely Muhammad Shafa in the trial court as well as in the Ist Appellate Court and in the court of the then Hon'ble Judicial Commissioner N.As as evident from the record and, as such, the petitioner/ defendant was aware regarding institution of suit against her in the trial court, Moreover, summon issued by the learned District Judge, Gilgit was also duly served upon the petitioner/defendant as evident from the report of Process-Serer namely Abdul Razaq dated 14-6-1980, hence the petition filed by the present petitioner/ defendant under section 12(2), C.P.C. was hopelessly time barred and the learned trial court as well as he learned 1st Appellate Court have rightly dismissed the said application of the petitioner/defendant.

14. Moreover, from perusal of order sheets maintained by the learned District Judge, Gilgit it transpires that the petitioner/defendant had also appeared before the court of learned District Judge, Gilgit on many occasions as evident from the order sheets of 1st Appellate Court dated 11-4-1979, 28-6-1979, 19-9-1979, 14-02-1980 and 28-6-1981 and presumption of truth is attached to the order sheet of the court, hence the judgment/decree dated 28-4-1975 passed by the learned trial court was not obtained by means of fraud and mis-representation. Furthermore, the present petitioner/ defendant has withdrawn her civil first appeal from the court of District Judge, Gilgit as evident from order sheet of the learned District Judge, Gilgit dated 28.6.1981.

15. In view of the above, we find that the concurrent findings of both the courts below on the material issues are based on proper appreciation of evidence on record thus are well founded which in our opinion need no interference by this court in its writ jurisdiction as both the judgments and decrees neither suffer from any miscarriage of justice nor misreading/ non-reading of evidence on record nor we find any jurisdictional error or material irregularity, accordingly, the instant writ petition being devoid of any merit is hereby dismissed, however, with no order as to costs. File. ZC/214/GB Petition dismissed.