1998 PLP 1078 (SCMR)

MUNIR A. SHEIKH, J.

Through this petition, the petitioners seek leave to appeal against the order, dated 16th May, 1997 passed by the learned Judge in Chamber of Lahore High Court by which their application moved under section 12(2) of the Civil Procedure Code has been rejected.

2. The facts in brief are that the petitioners filed a suit to pre-empt sale of land measuring 254 Kanals, 3 Marlas on the ground that they were tenants and had superior right of pre-emption. The suit was decreed by the Collector through judgment, dated 31st January, 1978. In appeal, Additional Commissioner set aside the said judgment and decree by order, dated 23rd October, 1978 on the ground that one suit by all the petitioners was not maintainable as each petitioner should have filed separate suit for pre-emption of land under his tenancy and dismissed the suit.

3. The petitioners filed revision petition before the Board of Revenue which was accepted on 27th September, 1979 and the case remanded to Additional Commissioner to decide the appeal on merits after holding that one suit by the petitioners was maintainable. After remand, the Additional Commissioner on 19th May, 1981 accepted the appeal partly and the judgment and decree passed by the Collector was maintained only to the extent of land measuring 31 Kanals and 4 Marlas, as according to his findings, tenancy over that much land of Bashir, Muhammad Din and Shera, three plaintiffs had been established and qua the remaining land the suit of the other plaintiffs was dismissed. The petitioners filed revision petition before the Board of Revenue which was dismissed in limine on 4th June, 1981. The petitioners filed Writ Petition No.3164 of 1981 before the Lahore High Court which was dismissed on 23rd April, 1985. Petition for Leave to Appeal No.687 of 1985 was filed before this Court which was also dismissed on 30-11-1988 but judgment announced on 16th January, 1989.

4. It appears from the judgment passed by this Court in the said civil petition that an attempt was made on behalf of the petitioners to argue that after the remand of the case by the Board of Revenue to Additional Commissioner in the first round of litigation to decide the appeal on merits after holding that one suit was maintainable by all the plaintiffs, the respondents committed fraud, in changing the Revenue Record in order to show that only three of the plaintiffs were tenants according to the said record qua land measuring 31 Kanals, 4 Marlas out of the total land of 254 Kanals, 3 Marlas in order to deprive them of their right to pre-empt the said remaining land about which an observation was made that if remedy against such a plea. was available, it was by making application under section 12(2) C.P.C. before the High Court.

5. It was also observed that in the Constitutional Petition in the High Court, Patwari was summoned alongwith the Revenue Record and judgment was passed after giving full opportunity of hearing to the petitioners.

6. The petitioners moved application before the High Court under section 12(2), C.P.C. on 11th February, 1989 which has been dismissed on the ground of limitation. It has been held that period of limitation for filing such an application was three years under Article 181 of the Limitation Act.

7. Learned counsel for the petitioners maintained that the period of limitation for making such ad application was to start when the applicant acquired knowledge of committing act of fraud and in this case, application could be moved within three years from the date of judgment passed by this Court in Civil Petition for Special Leave to Appeal No.687 of 1985 on 30th November, 1988.

8. None of the contentions has any force. The Additional Commissioner passed order on 19th May, 1981 decreeing the suit to the extent of land measuring 31 Kanals, 4 Marlas out of the total land measuring 254 Kanals on the basis of entries in the Revenue Record and Khasra Girdawaris holding that according to them, only three of the plaintiffs were proved to be tenants over the land measuring 31 Kanals, 4 Marlas which finding of fact was challenged in revision petition before the Board of Revenue was upheld. The High Court in Constitutional Petition filed by the petitioners after examining the Revenue Record which was summoned through Patwari and giving full opportunity to the petitioners of hearing also upheld the same, therefore, the petitioners came to know on 19th May, 1981 when Additional Commissioner passed order based on the entries in the Khasra Girdawaris and Revenue Record, therefore, could not plead that they did not come to know about the alleged fraud as to alleged changes made in the Revenue Record even after passing of the said order and the judgment passed by the High Court in Constitutional Petition after examining the Revenue Record and the Patwari. The judgment was passed by the High Court on 23rd April, 1985, therefore, in order to get the said judgment set aside on the ground of fraud, application under section 12(2), C.P.C. was required to be moved within three years therefrom. The learned Judge in Chamber of the Lahore High Court, therefore, has rightly held that it was barred by time when moved on 11th February, 1989. The observation made by this Court in the judgment passed in Civil Petition for Special Leave to Appeal No.687 of 1985 that if any remedy was available to the petitioners on the plea of fraud, the same was to be availed by filing application before the High Court, does not have the effect of enlarging the period of limitation prescribed for making such an application as the said observation does not provide that the petitioners could file the application at that stage.

9. The order of the High Court, dated 16th May, 1997 does not suffer from any legal infirmity, therefore, this petition has no force which is accordingly dismissed and leave refused. M.B.A./A-45/S Leave refused.