P L D 2011 Peshawar 224 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioners through instant civil revision have impugned the judgment/decree dated 26-6-2002 of District Judge, Swabi whereby he while accepting appeal against the judgment and decree dated 12-3-1999 of Civil Judge, Swabi, converted the suit of the plaintiff/respondent No.1 for declaration into an application under section 12(2), C.P.C. wherein she had claimed herself to be the owner of the suit property and had challenged the consent decree dated 21-1-1987 in Suit No.315/1. The appellate Court while converting the suit into an application under section 12(2), C.P.C. also allowed the claim of respondent No.1.

2. Learned counsel for the petitioners submitted that the suit of respondent No.1 was not only incompetent but was also barred by law of limitation. The learned appellate Court has not exercised its jurisdiction in accordance with law. The conversion of incompetent suit of respondent No.1 into an application under section 12(2) is against the law and the appellate Court has not exercised its jurisdiction in accordance with law as the suit lacked the requirements of application under section 12(2), C.P.C. The findings of the appellate Court are liable to be set aside and not worth to be maintained and suit of plaintiff/respondent No.1 be dismissed.

3. As against that the learned counsel for the respondent No.1, the plaintiff, in support of the findings of appellate Court submitted that suit of respondent No.1 was not competent and was rightly converted into section 12(2), C.P.C. as the decree of a Court can only be questioned under section 12(2), C.P.C. The respondent No.1 had otherwise proved her claim so, the same was rightly allowed.

4. Learned counsel for the parties were heard and record of the case was gone through. The record of the case would reveal that plaintiff/respondent No.1 through a suit for declaration has claimed ownership of the suit property on the strength of an unregistered gift deed dated 21-9-1977 by her husband. She also challenged the consent decree dated 21-1-1987 in Suit No.315/1 as ineffective against her rights as the same was passed in her absence.

5. Her suit was dismissed by the trial Court whereas the appellate Court by admitting the claim of plaintiff/respondent No.1 in her appeal had converted her suit into an application under section 12(2), C.P.C. by placing reliance on a judgment of the apex Court in the case of Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCMR 1744) and Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others (PLD 1993 Peshawar 87). The appellate Court then allowed the application and thereby passed a decree in her favour regarding her claim. Such an exercise by the appellate Court has been impugned through the instant revision petition.

6. No doubt, a Court has got powers to convert an irregular proceeding into a regular one and a suit thus can be converted into an application under section 12(2), C.P.C. The purpose behind the same is to decide and adjudicate the controversy between the parties on merits than to knock them down on technicalities. The procedural laws are framed only for advancement of cause of justice and cannot be used to refuse the dispensation of justice. But such an exercise is always required to be done within the framework of law. The conversion of a suit into an application under section 12(2), C.P.C. would only be possible if the circumstances of the case attract the provisions of section 12(2), C.P.C. Because said provision of law has a very limited scope. That application can only be considered if the question involved in the same is of fraud or misrepresentation or want of jurisdiction. The acceptance of such an application results into setting aside of the decree impugned therein. Whereas a decree of Court would have a binding effect only against the parties to the lis and the persons who were not parties in the case legally cannot be chained in and the same would have no binding or adverse effects against the rights of said persons. A person, whose rights are affected by a judgment/decree so passed, can also challenge the decree through an independent suit. Such a view was also expresses in the case of Shah Muhammad v. Khurshid Alam (2006 YLR 2428).

7. While reverting back to the facts and circumstances of the case, the first question requiring consideration would be as to whether the question of fraud, misrepresentation or want of jurisdiction was involved in the suit in question which was converted into an application under section 12(2), C.P.C. If answer to this question is in affirmative then the other questions would be that after converting the suit into an application under section 12(2), C.P.C, whether the said application can be allowed straight-away by the same Court converting the suit into an application while hearing the appeal and then whether the claim of petitioner can be allowed in the same sitting. Yet another important question with regard to section 12(2), C.P.C. would be that which Court will have the jurisdiction to adjudicate the said application (so converted) under section 12(2), C.P.C.

8. All the above questions have direct bearing on the merits of the case which have not been considered by the appellate Court while deciding the appeal. Unless the above questions are answered the decision regarding conversion of a civil suit into an application under section 12(2), C.P.C. could not be said to have been done after due application of mind. So, in this view of the matter, it appears to be just and equitable that all the said questions be heard and decided by the appellate Court itself and then the fate of the suit be decided. Thus without touching the merits of the case, this civil revision is allowed, judgment and decree passed by the appellate Court is hereby set aside and the case in hand is sent back to the appellate Court who should decide the appeal after hearing all the parties and decide the matter by answering all the above said questions as it is not a matter so simple that just convert a suit into an application under section 12(2), C.P.C., then allow the same by taking yet another step of allowing the claim of the plaintiff/applicant in the same sitting without taking any pause. The parties are hereby directed to appear before the District Judge, Swabi on 15-6-2011. H.B.T./199/P?????????????????????????????????????????????????????????????????????????????????????? Case remanded.