P L D 2024 High Court (AJ&K) 1 (PLP)

SYED SHAHID BAHAR, J.

The captioned appeal has been directed against the decision passed by the learned Additional District Judge Kotli dated 07.09.2019, whereby, the application filed under Section 12(2), C.P.C. for setting aside the judgment and decree dated 18.04.2019 was dismissed.

2. The facts of the case in brevity are that respondents Nos. 2 to 5, herein, filed a suit for specific performance against respondent No.1, herein, in the Court of learned Additional District Judge Kotli which was decreed in favour of plaintiffs therein vide the judgment and decree dated 18.04.2019. The said judgment and decree was challenged by the appellant, herein, before the learned Additional District Judge by filing an application under Section 12(2), C.P.C. on the ground that the judgment and decree has been obtained by the plaintiffs by practicing fraud and forgery as defendant No.1, therein, was not competent to transfer the land without its partition, so, the agreement to sell dated 02.03.2019 in favour of defendants Nos. 2 to 4, being obtained through fraud is liable to be cancelled, hence, the alleged entitlement certificate was issued unlawfully without partition of the land. Finally prayed for cancellation of the impugned judgment and decree dated 18.04.2019. The learned Court below in light of the pleadings of the parties and after hearing the learned counsel for the parties dismissed the application being not maintainable vide decision dated 07.09.2019, hence, this appeal for setting aside the aforesaid decision.

3. The learned counsel for the appellant while reiterating the grounds taken in the appeal vehemently argued that the entitlement certificate which was issued in favour of respondent No.1 dated 17.12.2018 clearly postulates that the Shamlat Deh Land could be transferred after its partition but the said respondent transferred the land without partition, so, the sale deed issued in favour of respondents comes into the definition of fraud and misrepresentation. He further argued that the decision dated 07.09.2019 as well as judgment and decree dated 18.04.2019 of the Court below are without any legal justification which are liable to be set-at-naught.

4. Conversely, the learned counsel for respondents submitted that the appellant is not the owner in the said Village as he was refugee of 1947, so, he is not entitled for Shamlat Deh Land. He further argued that the Shamlat Deh Land in the said Mozia has also been partitioned. The authority has issued the entitlement certificate in favor of Mohammad Shakeel as per law subject to partition and he transferred the land to the respondents through agreement to sell purely in light of judgment and decree of the Court below, he added. The learned counsel further argued that the appellant has failed to point out any fraud, forgery and misrepresentation in the impugned decision, therefore, his application was rightly dismissed by the Court below and regarding the appeal in hand, he stated that the same is not maintainable as against the decision of the Court below, the revision petition lies but the learned counsel has failed to make any request before the Court to treat the same as revision petition within prescribed period and lastly prayed for dismissal of the same.

5. I have heard the learned counsel for the parties and gone through the record of the case with my due care and caution.

6. The learned counsel for respondents raised preliminary objections that order impugned herein, was not a decree within the meaning of Section 12(2), C.P.C., so, the said order is not appealable, hence, the appeal in hand is not competent and liable to be dismissed on this sole point. Order of the trial Court dismissing application under Section 12(2) was neither a decree nor appealable and against the said order revision petition lies under Section 115, C.P.C., but instead of filing revision petition, the learned counsel filed the supra appeal and never made any request in this regard for treatment of the same as revision petition within stipulated period. In 2013 CLC 411, the Hon'ble High Court of Peshawar held as under:- "The petition under Section 12(2) was dismissed by the learned Civil Judge vide order dated 30.06.2009. This order was not a decree within the meaning of Section 12(2), C.P.C. and the order under Section 12(2), C.P.C. being not one of those order which are appealable under Section 104 or XLIII, Rule 1, C.P.C. There is no other law for the time being enforce which makes the order under Section 12(2) appealable." So, in such like eventualities, the appeal supra is liable to be dismissed on this sole point. Furthermore, a contemplate perusal of the "Entitlement Certificate" shows that the same was issued in favour of Mohammad Shakeel son of Noor Mohammad as he was a sharer and khewat holder in the Mozia so, he was declared for entitlement of Shamlat Deh Land. It has also been mentioned in the said Certificate that the land transferred to him was within his shares but the authority for his satisfaction issued the same subject to partition. In my considered view, the learned counsel for appellant has failed to point out any fraud, forgery and misrepresentation in the impugned judgment and decree, hence, the application filed under Section 12(2), C.P.C. for cancellation of the judgment and decree was rightly dismissed by the learned Court below, which needs not interference of this Court at all.

7. Section 12(2), C.P.C. is a substitute for a separate/independent suit for setting aside of a decree obtained by fraud, misrepresentation and lack of jurisdiction. Allegation of practicing fraud upon the Court by beneficiary of the proceedings is sine qua non for filing an application under Section 12(2), C.P.C.1. Thus, in above vista of the matter, the learned counsel for the appellant was confronted to point out the above eventualities which are condition precedent in this regard by that he has failed to make satisfactory reply. He argued that proceedings are fraud upon law.

8. Trite that appeal, review and revisions are creature of the relevant statute and no Court can entertain and adjudicate a lis if prayed remedy is not provided in law in a specific manner. Jurisdiction means jurisdiction which is conferred by law not otherwise. Although this Court has vast and ample powers to convert and treat the appeal as revision and vice-versa but said power is always exercised by taking into consideration the limitation for filing such lis. We are not inclined to exercise this power after lapse of 5 years. Order passed under Section 12(2) does not culminate in decree but remains simply an order passed on a miscellaneous application, no appeal lies against such order, only remedy of revision under section 115, C.P.C. can be availed

2. The crux of the above discussion is that the instant appeal is not maintainable for the above multiple reasons which is hereby dismissed with no order as to costs. MQ/9/HC(AJ&K) Appeal dismisse