Ch. JA LAL DIN vs Mst. ASGHARI BEGUM AND OTHERS

ORDER

1. ' NASIM HASAN SHAH, J.-The case of the petitioner is that he had entered into an agreement with one Mst.

2. Amir Begum for the purchase of property bearing No, 332-A & 333 situate at Shahrah-e-Sarwar, formerly Elgin Road, Lahore, for a consideration of Rs, 75,000, out of which, he paid her Rs, 40,000 in advance, but before the contract of sale could be finalised and the sale deed executed, the said Mst. Amir Begum died without leaving any heir. The property, according to the petitioner, therefore, escheated to the Government. He, therefore, instituted a suit against the Province of the Punjab for possession of the property through specific performance of the contract of sale of the property in question. This suit was decreed ex parte on 20-3-1979 and the sale- deed was executed through Court on 15-12-1979.

3. ' Respondents Nos. 1 and 2 herein alleging that they were the daughters of the late Mst. Amir Begum moved an application for setting aside the said decree under section 12(2) and Order IX, rule 13 of the C. P. C. On the ground that he had obtained it by practising fraud upon the Court. In this connection they pointed out that the Lanore Cantonment Authorities had on 20-9-1978 mutated the property of Mst. Amir Begum in their favour, accepting them to be her heirs. Petitioner No, 1, by concealing the real facts from and by misrepresenting to the Court that Mst. Amir Begum had left no heir, had secured the ex parte decree fraudulently. As the respondents remained unaware of the pendency of the suit, they had filed the petition under section 12(2) of the C. P. C. As soon as they acquired knowledge of the ex parte decree.

4. ' The petitioner contested the above petition raising the plea of limitation, objecting to the maintainability of the application and questioning the locus standi of respondents 1 and 2 to bring the same. The following issues were framed by the trial Court :-

(i) Whether the decree dated 20-3-1983 has been obtained through fraud? O.P. R.

(ii) Whether the applicants are the daughters of Mst. Amir Begum? O. P. R.

(iii) Whether the application is time-barred? 0. P. R.

(iv) Whether the application is not maintainable in view of preliminary objections 2 to 6 and 8? 0. P. R.

(v) Whether the applicants have no locus standi? 0. P. R.

5. (vi)

6. ' The learned trial Court, by his order dated 10-5-1983, disposed of Issues Nos. 3 to 5 in the first instance without, however, calling upon the parties to lead evidence. While recording its decision on the said issues he seems to have realised that without taking any evidence it was not possible to give a conclusive finding on the said issues. He, therefore, recorded a provisional finding on the said issues to the effect that prima facie the petition was competent, could, therefore, be proceeded with and fixed the case for recording the evidence on all issues on 6-6-1983.

7. ' The petitioner, feeling aggrieved by the above order, challenged it by a revision before the Lahore High Court.

8. The learned Judge of the said Court dismissed the same, observing that the so-called provisional decision of the learned Civil Judge had not finally settled the dispute and that there was, therefore, no ground for interference. He further observed that the learned Civil Judge would have been better advised if he had allowed the parties to lead evidence on all issues and decided the same thereafter. He, therefore, directed the learned trial Judge to record the evidence of the parties and thereafter give his finding on each issue afresh uninfluenced by the provisional decision which he has made. The petition was dismissed in limine with the above observations.

9. ' Sardar Muhammad Akram, learned counsel for the petitioner, in support of this petition for leave to appeal, has contested the locus standi of respondents Nos. 1 and 2 to institute the petition under section 12(2) of the C. P.

10. C. He relied upon the decision of the Lahore High Court reported as Muhammad Ilyas v. Azhar Hafeez Sheikh and others (1), wherein it was held that the word "person" in section 12(2) of the C. P. C. Was to be restricted to the judgment-debtor and his successor-in-interest only and the application made by the petitioner (therein), who was neither the judgment-debtor nor his successor-in-interest qua the decree in question, was not competent.

11. ' We have perused the above judgment and find that it proceeds on its own peculiar facts and circumstances and is not relevant in the facts and circumstances of this case. A much fuller discussion of the scope of the {{FOOT NOTE}}

(1) PLD 1981 Lah. 353 {{FOOT NOTE}} ' word "person" in section 12(2) of the C. P. C. Has been made in the case of Abdur Rauf and others v. Abdur Rahim Khan (1). The following passage therefrom may be reproduced hereunder with advantage :- "It is obvious that in section 12(2), C. P. C. The word 'person' and not the judgment-debtor or his successor-in- interest or the word party to 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 I 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."

12. ' We are inclined to agree with the above exposition of law and would hold that the respondents Nos. 1 and 2 had a locus standi to file a petition under section 12(2) of the C. P. C.

13. ' This petition must, therefore, fail and is, accordingly, dismissed hereby.

(1) PLD 1982 Pesh. 172