P L D 1985 Karachi 705 (PLP)

5. Meanwhile the applicants came to know that Abdul Ghafoor brother of the husband of applicant I has entered into an agreement of sale on 24-11-197, for the sale of plot of land bearing No. 840/2 which bears the Excise and Taxation Department No. AKI-5S-2/1, measuring about 325 Sq. yards, with respondent

1. The applicants, therefore, filed a suit, being Suit No. 764 of 1981, as stated at the Bar, in the Court of VIII Senior Civil Judge, Karachi on 19-2-1981. This suit was withdrawn, again as stated at the Bar, and therefore, a suit, being Suit No. 808 of 19ts4, has been filed in High Court.

6. It, however, appears that in 1974, Haji Ali son of Abdullah bad also filed a suit, being Suit No. 943 of 1974, against Mst. Hawa Bai, Abdul Ghafoor and Karachi Metropolitan Corporation in the Court of 2nd Senior Civil Judge, Karachi claiming that he is in possession of the plot in question and seeking the following main reliefs : (a) A declaration be granted to the effect that the plaintiff is owner of construction and in occupation of Plot No. 840/2, Liaqat Colony, 1-yari Quarters, Karachi measuring 325 sq. yds. bounded by : On the North by???????? Plot No. 840/1 On the South by???????? Plot No. 840/3 On the East by??????????? Gali 15. ??????????? On the West by????????? Plot of Hashim Okhai and that he is entitled for the grant of lease of the said plot and lease in favour of defendant No. 1 by defendant No. 3 in respect of the said above property is obtained by fraud, misrepresentation, undue influence and by filing false documents by defendant No. 1 and, therefore, the same is illegal, null and void in the eyes of law and has no legal effect whatsoever. (b) A mandatory injunction be issued directing the defendant No. 3 to cancel the said lease in favour of defendant No. 1 and grant lease in favour of the plaintiff' on the prescribed terms and conditions. (c) A permanent injunction be issued restraining the defendants, their servants, agents, person or persons on their behalf from transferring, disposed of, leasing out, dispossessing the plaintiff from the suit property, and from demolishing the structures thereon." To this suit the applicants were not made parties. The suit was ultimately decreed by the judgment and decree, dated 14-3-1981.

7. The applicants, therefore, on 19-4-1985, filed an application under section 12 (2), C. P. C. and Order 1, rule 10, C. P. C., as stated before. for setting aside the judgment and decree which according to them respondent 1 obtained by fraud and for joining them as a party to the suit. This application was rejected by the order, dated 18-9-1984, as stated hereinbefore.

8. I have heard Mr. S. Zamirul Haq learned counsel for the applicants. He has submitted that the learned Senior Civil Judge acted with material irregularity in dismissing the application under section 1..(2), C. P. C. etc. without recording evidence which he was bound to record.

9. The learned Senior Civil Judge has dismissed the application on the grounds that the intervenors applicants hive filed a separate civil suit, being Suit No. 764 of 1981, which was then pending in the Court of VIII Senior Civil Judge. Karachi for the purposes of declaration and cancellation of the lease documents retarding the suit property and that the application under section 12(2), C. P. C. was without merit and was not maintainable.

10. It is admitted fact that the applicants were not joined as a party to Suit No 943 of 1974, and the. decree obtained in that suit is a decree whereby it has been declared that Haji Ali son of Abdullah is the owner of the construction on the disputed plot and in consequence whereof Karachi Metropolitan Corporation was directed to cancel the lease-deed in favour of Mst. Hawa Bai and grant lease in favour of Haji Ali son of Abdullah.

11. It is, therefore, clear that the decree is mainly a declaratory decree and this decree would not be binding on the applicants as they were not the parties to the suit in which the decree was passed in view of the provisions of section 43 of the Specific Relief Act, which provide that a declaration made under Chapter VI of the Specific Relief Act is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the decalaration, such parties would be trustees. Since the declaration is binding only on the parties or the persons claiming through them it follows that it cannot bind the applicants who are strangers to the suit. In support I may quote here a passage from `the Law of Specific Relief in India and Pakistan' by Om Prakash Aggarwala, page 304 (4th Edition) : "As a declaration is binding only on parties or persons claiming through them, it follows that it cannot bind strangers. A declaration will not operate as a judgment in rein." Reliance is placed by the author on Razeekour v. Zalim (29 P R 1866), Sohal v. Sadi (99 P R 1888).

12. Learned Senior Civil Judge in the impugned order has also held that application under section 12(2), C. P. C. was not maintainable. It may be, mentioned here that in subsection (2) of section 12, C. P. C. it is provided that' where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he should 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 provisions imply that resort can be had to them by a person against whom a decree has been obtained by fraud or misrepresentation or from a Court that lacked jurisdiction and since the applicants were not parties to the suit and the decree does not bind them it follows that they could not make the application. My view finds support from the definition of the term `decree' which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The word 'parties' used in the term can only mean parties to the suit or their legal representatives but it would not, in my opinion, include strangers to the same. Reference may also be made to section 47, C. P. C. wherein it is provided that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree, and not by a separate suit. While considering the word parties used in section 2(2) of the Civil Procedure Code it was opined by Lindsay, J. C., in Brij Mohan Sing'o and another v. Ram Milan Singh (20 I C 898) that it is used in the same sense in which the expression `parties to the suit' is used in section 47 of the Code and includes only those persons who are joined on either side as plaintiffs and defendants. Accordingly, if a person is not joined as a party to the suit and the decree is passed in such suit the decree will not be against him and he cannot say that 't has been obtained against him bY fraud and misrepresentation.

13. I, therefore, hold that the order of the learned Senior Civil Judge, Karachi that the application was not maintainable is according to law and therefore; this Revision Application merits dismissal and I accordingly dismiss it but in the circumstances of the case leave the parties to bear their own costs. A. A.??? Revision dismissed.