1991 PLP 789 (MLD)

Mian Mushtaq Ahmad for Petitioners. Ch. Habib-ullah Nehang for Respondents. Date of hearing: 28th November, 1990. Through this Constitutional Petition, Ghulam Jillani and 3 others, petitioners seek declaration to the effect that the order, dated 27-3-1984 of the learned District Judge, Multan, and order, dated 15-11-1983 of the learned Civil Judge, Khanewal, are without lawful authority and of no legal effect.

2. The facts leading to this petition, briefly, are that on the application of Naimat Ullah and others, respondents Nos.l to 5, the learned Civil Judge, Khanewal, vide his order, dated 30-3-1982 made award, dated 19-9-1981 given by Abdul Khaliq, respondent, rule of the Court. On 5-6-1982, Ghulam and other petitioners filed an application under section 12(2) of the C.P.C. for setting aside the order, dated 30-3-1982 of Civil Judge, Khanewal, on the ground of fraud and misrepresentation. This application was dismissed by the learned Civil Judge, Khanewal, on 15-1-1983, on the ground that since applicants/petitioners were not party to the proceedings, therefore, the application under section 12(2) of the C.P.C. was not maintainable. Feeling aggrieved thereby, the petitioners filed revision, which was dismissed by the learned District Judge, Multan, on 27-3-1984. Hence this petition.

3. The learned counsel for the petitioners relied on 1984 SCMR 486 to contend that the application under section 12(2) of the C.P.C. filed by a person who was not a party to the original proceedings was quite competent. Conversely, the learned counsel for the respondents argued that section 12(2) of the C.P.C. relates to the suits and not to the applications for making the award rule of the Court and, as such, the very application of the petitioners was not maintainable. Reliance has been placed on PLD 1988 S.C. 39.

4. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioners. I find that the application of the petitioners under section 12(2) of the C.P.C. was dismissed by the trial Court on the sole ground that:-- I find that the impugned order has been passed in violation of the law laid down by the Supreme Court in 1984 SCMR 486 and also against the provisions of subsection 2 of section

12. C.P.C., which may be re-produced advantageously:-- Subsection (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 seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." The word "a person" used in the subsection (2) re-produced above is of great significance, which will show that even a person other than the judgment-debtor can challenge the decree on the ground of fraud and misrepresentation and lack of jurisdiction.

5. Pursuant to the above discussion, this petition is accepted and the impugned orders are declared to be illegal, without lawful authority and of no legal effect. Consequently, the case is sent back to the trial Court for fresh decision of the application in accordance with law. As for the objection of the respondents with regard to the maintainability of the application under section 12(2) of the C.P.C. of the petitioner, they may raise this objection before the trial Court, if so advised. The parties shall bear their own costs. AA./G-399/L Petition accepted.