1986 PLP 2523 (MLD)

Mst. Safia Bibi v. Mst. Aisha Bibi 1982 S C M R 494; Muhammad Alamgir, etc. v. Muhammad Iqbal etc. 1985 C L C 2919 and Mat, Rehmat Bibi and others v. Punnu Khan and others 1986 S C M R 962 ref. Iqbal Ahmed for Applicant This is an application under section 12(2) of the Code of Civi Procedure. The background is that an order was passed on 28‑10‑1979 by Mr. Justice Muhammad Zainul Abidin in S.A.O. No.161 of 1971 that the respondent had produced a copy of the order of execution and had stated that he had withdrawn the execution application against the appellant who had voluntarily vacated the house in dispute in his favour In that view of the matter the appeal was disposed of with no order as to costs. The respondent was present in person before the learner Judge although the appellant was absent and had not been represented by anyone. Anyway the order was passed on 28‑10‑1979 disposing of S.A.O. No.161 of 1971. Four years thereafter the appellant in S.A.O No.161 of 1971 moved in this Court an application to the effect that the aforesaid appeal should be re‑heard as it had been disposed of in the absence of the appellant or his counsel. It was claimed that since the appellant was still in possession of the disputed house his appeal was got disposed of by the respondent by making a misrepresentation that the appellant had voluntarily vacated the house in dispute in his favour. The matter was heard by ire and I asked learned counsel that he should produce some case‑law on the point that if an appeal had already been decided could it be re‑heard after four years when the Court had become functus officio. I, therefore, suggested to learned counsel that he should avail of any other remedy which may be available to him at law but I could not re‑hear the appeal after lapse of so many years. This application was disposed of by me on 10‑10‑1983. Now after three more years learned counsel has again moved this application under section 12(2), C.P.C. in the main S.A.O. No.161 of 1971 which was originally decided by this Court on 28‑10‑1979. His contention is same, i.e., that the matter had been disposed of in .1979, in the absence of the appellant and that since it had been disposed of by misrepresentation of the respondent to the effect that ‑‑the appellant had voluntarily vacated the house in dispute in his favour, this Court should re‑hear the appeal under the aforesaid section of C.P.C. irrespective of the point of limitation involved in the matter.

2. Section 12(2), C.P.C. reads as follows:‑ "Where a person challenges the validity, of a judgment, decree of 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 contention of learned counsel is that in the present case the order had been passed by the learned Judge on 28‑10‑1979 on misrepresentation and that, therefore, an application had been made to the Court which passed the said order as the remedy of separate suit is not available under the aforesaid section. In this connection reliance was placed on Met. Safia Bibi v. Mat. Aisha Bibi 1982 S C M R 494 in which it was held that order of the High Court passed in writ petition was alleged to have been passed on fraud and misrepresentation, consequently ]n an application under section 12(2), C.P.C. it was held that the said order of the High Court passed in writ petition could be challenged by an application under the aforesaid section and not by separate suit. In such circumstances the High Court was required to hold enquiry and to adjudicate the matter. Learned counsel further stated that with alternative if the question of limitation was involved then if it is in respect of an application under section 12(2), C.P. C. then the time of limitation would be considered under Article 181 of the Limitation Act and it would be three years and not under Article 173 of the Limitation Act where it would be 90 days. In support of his argument he placed reliance on Muhammad Alamgir, etc. v. Muhammad Iqbal, etc. 1985 C L C 2919. Alternatively learned counsel submitted that the question of limitation would not arise in a case of this nature as‑ the initial order had been passed through a misrepresentation and, therefore, if an application has been moved under section 12(2), C.P.C. by the appellant after the lapse of about 7 years the appeal should still be re‑heard as the initial order had been passed on misrepresentation of the fact that the appellant had voluntarily surrendered the possession of the disputed house whereas in fact he was still in possession of the same. In this connection learned counsel placed reliance on Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 S C M R

962. In that case it was held that the principles of limitation were not applicable when an order was a nullity in the eye of law and that if an impugned order had been passed without hearing and notice to a party whose presence was otherwise necessary before the authorities concerned then such an order would be a nullity in the eye of law and no question of limitation would arise.

3. I have considered the applicability of section 12(2), C.P.C. as well as the authorities cited by learned counsel. The position of this case is that the objectionable order was passed in 1979 in this case and the claim of the appellant/ applicant is that he was still in possession of the disputed house. If he had been in possession of the disputed house there was no earthly reason to believe that he would have no notice of the order of 1979 until 1983. Thereafter, three more years have passed and now after seven years he is again moving an application under section 12(2), C.P. C. and raising the plea that the initial order, dated 28‑10‑1979 had been passed without notice to him. In my view the facts of the present case are distinguishable from the facts of the cases which have been cited by learned counsel. In a case of this nature when the appellant had not voluntarily surrendered the possession of the property in dispute, it was not a case in which section 12(2), C.P. C. could have been invoked, because he could have already availed of legal remedy which was available to him. In that view of the matter I do not find any substance in this application which is accordingly dismissed in limine. H. B. T. Application dismissed.