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1996 C L C 1696

 

[Peshawar]

 

Before Sardar Muhammad Raza, J

LAL KHAN and another‑‑‑Petitioners

 

versus

 

REHMATULLAH and 5 others‑‑‑Respondents .

 

Civil Revision No.25 of 1993, decided on 22nd May, 1996.

 

M. Ayub Khan for Petitioners. Bashir Ahmad Moghal for Respondents.

 

Date of hearing: 22nd May, 1996.

 

JUDGMENT

 

Lal Khan s/o Khanizaman and Muhammad Ghulam s/o Hussain Khan residents of Mallach brought a suit for declaration‑cum‑permanent injunction qua a property measuring 11 Kanals, 4 Marlas comprised in Khasras Nos.660, 661, 662 and 674. of Village Mallach against Abdul Ghani s/o Munshi Chiragh Din through Chaudhary Ghulam Jailani s/o Chaudhary Muhammad Ali (his general attorney) of Havelian Road, Abbottabad, on the basis of. a receipt dated 30‑5‑1970 indicating a sale in favour of the plaintiffs for a sum of Rs.20,000 as sale consideration.

 

2. The suit filed on 11‑6‑197.9 proceeded for the service of the defendant and in due course was fixed for 25‑7‑1979 for notice in daily “Nawa‑i‑Waqt”, Rawalpindi when, before the date of hearing, the parties .appeared on 7‑7‑1971. filed a compromise deed. entered into a compromise and on the basis thereof (on 7‑7‑1979), the decree prayed for was granted in favour of the plaintiffs (Lal Khan etc.).

 

3. On 5‑1‑1981, another Jehandad Khan s/o, Miro Khan (since dead‑‑L.Rs. impleaded) filed an application under section 12(2), C.P.C. against the aforesaid parties and the aforesaid decree obtained by them in Suit No.303/1 on the basis of which a Mutation No.4006 had also stood attested on 23‑8‑1980. The decree was challenged on the basis of fraud and misrepresentation. It was twice dismissed in the Trial Court on 8‑11‑1983 and 30‑1‑1990 but ultimately Mr. Mukhtar Ahmad Khan learned Additional District Judge on 14‑2‑1992 accepted the application and set aside the judgment and decree in Suit No.303/1 aforesaid.

 

4. So far as the facts of Suit No.303/1 are concerned, the compromise on behalf of Abdul Ghani was executed and signed by Chaudhary Ghulam Jailani, the general attorney. The same general attorney had allegedly sold the property through a receipt dated 30‑5‑1970 but baffling it is to note that the general power of attorney in favour of Chaudhary Ghulam Jailani and on behalf of Abdul Ghani was attested on 26‑8‑1972 i.e. more than two years after the execution of receipt. This, by itself is sufficient to prove fraud and Misrepresentation through documents.

 

5. A perusal of revenue and settlement record would suggest that at the time of execution of the aforesaid deeds he had never become owner of any allotted property in the then Hazara District. A judgment dated 20‑6‑1974 of the Settlement and Rehabilitation Commissioner, Hazara also suggests that entire allotment in favour of Abdul Ghani in Village Mallach was cancelled. File No.303/1 also reveals that not a shred of Revenue Record was placed thereon and a collusive compromise was entered into in order to grab the property. In this view of the matter, the learned Additional District Judge had rightly set aside the decree dated 7‑7‑1979 on grounds of fraud and misrepresentation. The judgment is unexceptionable so far as the factual back ground is concerned.

 

6. The learned counsel for the petitioner came up with the first objection that Jehandad was not a party to Suit No.303/1 and hence had no locus standi to file a petition under section 12(2), C.P.C. In this behalf he relied upon “Mst. Marium and 5 others v. Haji Ali and 3 others” (PLD 1985 Karachi 705) wherein it was held that a judgment is binding on a person only when he is a party thereto, and, when a judgment is not binding, it is not required of him to file an application under section. 12(2), C.P.C. In the true perspective in which amendment was made in section 12 of the C.P.C. and a subsection (2) was added, I would humbly disagree with the aforesaid view of the Karachi High Court.

 

7. Had the legislature indended to exclude a non‑party to a suit, it would never have used the word ‘person’ in subsection (2), which is of a general 8 nature and is inclusive of every one provided he is affected. Had a third person been intended to be excluded, subsection (2) could very well start with the word’s “where a party to a suit challenges the validity … instead of the words “where a person challenges the validity …. .

 

8. It is a general principle of law that any person affected by a decree has a right to rile an appeal without being a party to the suit. If a larger right of an appeal is given by the law to a third person, a right of filing an application cannot be disputed at all; provided always that such person must show and prove that he is affected by the judgment, decree or order. I hold, therefore, that a third person can also file an application under section 12(2), C.P.C. challenging C the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction provided he is affected by such judgment, decree or order.

 

9. The second objection of the learned counsel for the petitioner was that an order passed under section 12(2), C.P.C. is not appealable and thus‑ the appeal filed before the learned Additional District Judge, Abbottabad was not competent at all. The learned counsel relied upon “Munir Ahmad Khan and others v. Samiullah Khan and. others” (1982 CLC 625), “Nathu Khan v. Muhammad Rafiq and another” (1987 CLC 1501) and “Ahmad and another v. The Additional District Judge” (PLD 1990 Lahore 425) wherein it was held that an order passed under section 12(2), C.P:C..was not appealable. I do agree with the view taken in the aforesaid findings because while making amendment in section 12 of the C.P.C., no corresponding amendment was either made in section 104 or Order XLIII of the C.P.C. and hence there is no reason for which, such like order be considered as appealable. It is of course a revisable /D order.

 

10. No doubt the order passed under section 12(2), C.P.C. is not appealable but then an Appellate Court has got the power to convert an appeal into revision and vice versa provided such decision is not otherwise affected by any other law like that of limitation. In the instant case the Appeal No.38/13 before the Additional District Judge. was practically converted into a revision. The last and the operative paragraph of the judgment would clearly indicate so. Thus there was nothing wrong so far as the competency of cause was concerned. Rather the argument of the learned counsel boomerangs upon him because the E matter having already been treated as revision, the petitioner could not under any circumstances come before this Court in second revision. I hold that apart from factual side of the case, the instant revision is rather incompetent as well.

 

11.’ The last argument of the learned counsel for the petitioner, was that a similar property was obtained by Jehandad as well from the same person through the same method adopted in Suit No.301/1 and hence he could nor challenge the validity of the judgment in Suit No.303/1. This is not correct because one wrong, if at all, cannot justify another one. The petitioner Lal Khan may adopt any legal course against the judgment in Suit No.301/1, if advised.

 

12. On the grounds mentioned above the revision petition ‑ is hereby dismissed.

 

A.A./1960/P Revision dismissed.

 

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