1990 PLP 1628 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑ Leave to appeal was granted to consider as to what is the scope of power under section 12(2) of the C.P.C.

2. The facts, in brief, are that the appellant instituted a civil suit against the respondent No.2 for an injunction restraining him from raising construction on his specified portion of land. The suit was filed in the Court of Senior Civil Judge, Mansehra, on the ground that the suit land was joint property and there having been no partition, the respondent No.2 had no right to raise any construction over any part of the land. In the written statement, the respondent No.2 took the plea that there had been private partition of the suit land and that if in partition through Court the land under construction fell to the share of the appellant he would give possession of the constructed area to respondent No.2. The decree was passed in favour of the appellant on the statement of Muhammad Bashir, Patwari, who stated that the defendant was not co‑sharer in the disputed property. The learned counsel for the appellant stated that the same Patwari (Muhammad Bashir) appeared in another suit and stated that the defendant was a co‑sharer. This fact has not been disputed by the learned counsel for the respondent No.2. The appellant filed an application for execution of the aforesaid decree. The respondent No.2 made an application to the Senior Civil Judge under section 12(2), C.P.C. alleging fraud and misrepresentation in obtaining the aforesaid decree. The learned Senior Civil Judge dismissed the application on the ground that no fraud was committed and the application filed by respondent No.2 was not legally maintainable. The respondent No. 2 challenged this order in revision before the District Judge which was accepted by the Additional District Judge who set aside the judgment and decree passed in favour of the appellant as the same had been obtained due to misrepresentation. This order was maintained by the High Court in a Constitution Petition filed by the appellant and it was held that the decree was based on misunderstanding and misrepresentation.

3. We have heard the learned counsel for the parties. The learned counsel for the appellant submitted that the appellant had not obtained the decree on account of misrepresentation or fraud. The Patwari had given a statement and as a result of the statement of the Patwari, the appellant's suit for pre‑emption against respondent No.2 was dismissed on the ground that the decree had already been passed in favour of the appellant. The learned counsel for the respondent No.2 has not challenged these facts, therefore, it cannot be said that the appellant was instrumental in obtaining the decree. His plain case was that an injunction be issued against respondent No.2. The proper course for the Additional District Judge was to remit the case to the trial Court for adjudication on merits.

4. As a result of the above discussion, we set aside the judgment of the High Court dated 1‑4‑1985 and modify the order of the Additional District Judge dated 7‑3‑1984 to the extent that the case after the cancellation of the decree, would be remanded to the Civil Court for decision on merits after framing issues on the pleadings of the parties. The appeal is allowed in the above terms with no order as to costs. A.A./M‑1374/S Appeal accepted.