ABDUR RAUF AND Other vs ABDUR RAHIM KHAN, ADVOCATE

This revision petition is directed against the order of learned Civil Judge, Peshawar dated 28-3-1981 whereby a preliminary objection regarding the competency of the application of respondent No. 1 under section 12(2), C. P: C. Was decided in his favour and the learned trial Court after considering the question of jurisdiction decided to proceed with the matter. The petitioners feeling aggrieved have challenged the impugned order by this revision petition.

2. By a registered sale deed dated 13-3-1975 Abdur Rauf and Mst. Zubaida (the petitioners) sold 56 kanals of land situated in village `Macho Gagar' Tehsil Peshawar in favour of Lachi Khan (respondent No. 2). Abdur Rahim respondent No. 1 instituted a suit pre-empting the aforesaid sale on 9-3-1976 alleging that respondent No. 1 has preferential right of pre--emption being a co- sharer in the `Khata' of the suit land. During the pendency of the aforesaid suit the vendors Abdur Rauf and Mst. Zubaida (petitioners) instituted Suit No. 176/1 on 27-9-1977 against Lachi Khan vendee (respondent No. 2) for a declaration that the registered sale deed dated 13-3-1975 and the subsequent mutation were contrary to the Provisions of Martial Law Regulation 115 and thus the same being void should be declared as cancelled. The vendors also prayed for a decree for possession of the land against Lachi Khan the vendee. In the aforesaid suit respondent No. 2 filed his written statement but did not controvert the factual position. However, preliminary objection regarding the estoppel and court-fee were .Raised. The, learned trial Court on the joint request of the counsel for the parties id not record any evidence and proceeded to hear the arguments of the learned counsel of the parties and found both the legal preliminary issues in favour of the 'plaintiff vendors and passed the decree prayed for against Lachi Khan vendee on 22-7-1978. It is worth noting that in this suit not only no evidence was recorded but the copies of the revenue record showing the extent of ownership of the parties in the village were also not produced. The findings of the learned trial Court in para. 7 of the judgment to the effect that "on a plain reading of the M. L. R.

115 para. No. 24 the transaction entered between the parties which resulted in the sale deed dated 13-3-1975 is void as the revenue record placed on file shows that the plaintiffs were owners of other land as well as in the village whereas the defendant was not an owner in or resident of the village immediately before the transaction in question" are not supported by the record. It is difficult to understand as to how the learned trial Court came to the aforesaid conclusion in the absence of any oral or documentary evidence on the record.

3. Abdur Rahim pre-emptor (respondent No. 1) was not impleaded as a party to the aforesaid suit and the decree was obtained behind his back although the suit for pre-emption regarding the suit land was pending in which Lachi Khan vendee (respondent No. 2) had already filed a written statement and the evidence of the plaintiff-pre-emptor (respondent No. 1) also stood concluded.

But these facts were not brought to the notice of the Court passing the decree in Suit No. 176/1.

4. Taking a tentative view of the matter it appears that the decree in Suit No. 176/1. In favour of Abdur Rauf and Mst. Zubaida vendors (peti--tioners) against Lachi Khan vendee (respondent No. 2) was collusive which was obtained with a view to thwart the pending- pre-emption suit of Abdur Rahim (respondent No. 1) and intentionally he was not impleaded as a party to the said suit. Abdur Rahim pre-emptor gained the knowledge of the aforesaid decree only when in the pre-emption suit Lachi Khan vendee (respondent No. 2) submitted an application dated 17-12-1978 requesting for the dismissal of the pre-emptor's suit on the ground that the impugned sale transaction stood cancelled in view of the decree of the Civil Court in Suit No. 176/1 decided on 22-7-1978.

5. Abdur Rahim Khan pre-emptor then submitted an application under section 12(2), C. P. C. (as added by Code of Civil Procedure Amendment Ordinance X of 1980) in the Court which passed the decree with the prayer that the decree in Suit No. 176/1 was based on fraud and misrepresentation and also on the ground that it was passed without jurisdiction. The learned Civil Judge entertained the application and Abdur Rauf and Mst. Zubaida vendors (petitioners) and Lachi Khan vendee (respondent No. 2) were called upon to submit their written replies to the aforesaid application. The written replies were duly submitted by them raising preliminary objection to the jurisdiction of learned Civil Court to entertain the application under section 12(2), C. P. C. After hearing the arguments of both the parties the learned Civil Judge by the impugned order dated 28-3-1981 overruled the preliminary objection and decided to proceed with the matter.

6. The learned counsel for the petitioner has argued that the application under section 12(2), C. P. C.

Was incompetent because it was not submitted by a judgment-debtor or his successor-in-interest or by a party to the suit and Abdur Rahim pre-emptor (respondent No. 1) being a stranger to the suit was not competent to submit the aforesaid application. It was further contended that it was not a case of fraud and misrepresentation as envisaged by the provision of section 12(2), C. P. C. An objection was also taken that the amendment in section 12, C. P. C., adding subsection (2), thereto, by Ordinance X of 1980 being not retrospective would not apply to the decree passed in suit No. 176/1 decided on 22-7-1978.

7. It is obvious that in section 12(2), C. P. C. The word `person' an not the judgment-debtor or his successor-in-interest or the word party t the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the law-maker been to restrict the right of filing the application, under section 12(2), C. P. C. Only to the judgment-debtor or his successor-- in-interest or a person who was party thereto then nothing was easier for the law-maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person, not being a judgment-debtor or his successor-in-interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents. It is true that a decree would not be binding on a person who was not a party thereto but in the facts of the present case it is obvious that the aforesaid decree in Suit No.176/1 has been obtained with a view to frustrate the pre-emption suit of respondent No. I by taking the plea that the impugned sale having been aunulled the pre-emption suit has become infructuous.

8. The learned counsel for the petitioner has relied on PLD 1981 Lah. 353 where in word `person' has been interpreted to mean a 'judgment--debtor or his successor-in-interest. It appears that the aforesaid interpretation was adopted in the peculiar circumstances of that case because there the real object behind moving the application under section 12(2), C. P. C. Was to retain the possession of the disputed premises which the opposite side wanted to obtain through the execution proceedings. In this background the learned Judge was of the view that the remedy under rules 100 and 103 of Order XXI of the C. P. C. Being available to the petitioner, he was not entitled to invoke the jurisdiction of the, court under section 12(2), C. P. C: However, the facts of the present case are distinguishable inasmuch as that during the pendency of the pre-emption suit of respondent No. 1 the vendors and the vendee have obtained a collusive decree with the object to defeat the pending pre-emption suit of respondent No. 1 in which I appears he had admittedly a superior right of pre-emption on the group of co-sharership in the suit 'khata'. Thus in the circumstances of the case the pre-emptor (respondent No. 1) being a person aggrieved by the aforesaid decree was competent to move an application under section 12(2), C. P. C. Challenging the validity of the decree on the ground of fraud and misrepresentation etc.

9. The argument of the learned counsel for the petitioner about the retrospective effect of the aforesaid amendment of section 12 is also not legally sustainable because the aforesaid amendment being procedural in nature, can take effect retrospectively as no one can claim a vested right in matters relating to the procedure of the Court. Furthermore, the argument that the amendment having been incorporated on 26-3-1980 would have no retrospective effect as the decree in Suit No. 176/1 was passed on 22-7-1978 cannot be advanced as the application under section 12(2), C. P. C. Was instituted on 5-6-1980, i.e., after the enforcement of Ordinance X of 1980.

Thus no fault could be found with the application of respon--dent No.1 filed under section 12(2), C.

P. C. On this score.

10. The question of fraud, misrepresentation etc. On which the appli--cation under section 12(2), C.

P. C. Is based can be gone into by the learned Civil Judge because the decree in Suit No. 176/1 appears to be a collusive decree. The Dictionary meanings of the word `collusion' given in Wharton's Law Laxicon are "as to unite in the same play or game, and thus to unit for the purposes of fraud or deception, an agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose. Collusion in judicial proceedings is secret agreement between two persons that the one should institute a suitagainst the other, in order to obtain the decision of a judicial tribunal for some sinister purpose". In this view of the matter it cannot be said that the learned Civil Judge had no jurisdiction to proceed with the application. However, the observations made in this order shall not prejudice the learned trial Court in deciding the case on merits after recording the evidence. The revision petition being without any substance is hereby dismissed with no order as to costs.