M.G. GAZDAR (deceased) through his 4 Legal Heirs vs MANZOOR HUSSAIN

ORDER

1. ' The appellant moved an application under section 12(2), C.P.C. to set aside the orders, dated 7-2- 1983 and the orders, dated 1-11-1983 on the grounds of fraud and collusion. The application was dismissed by the Senior Civil Judge on the grounds, of limitation and that the application is not maintainable. It was observed by the Senior Civil Judge and Rent Controller that application under section 12(2), C.P.C. should have been filed within 90 days from the date of order as provided in Article 173 of the Limitation Act. Reliance has been placed on the case of Sikandar v. Saleh Muhammad reported in 1983 CLC 1590. The facts of the case are distinguishable. It is the allegation of the appellant that he did not know of the proceedings which were taken behind his back, therefore, unless the evidence is recorded the point of limitation will not be resolved. In the cited case the respondent was a party to the proceedings but in the instant case the appellant was not a party to the orders which are sought to be set aside. The learned Civil Judge should frame the issue about the question of limitation and then decide this matter because fraud has been alleged by the appellant. The finding of the Controller that the Civil Procedure Code is not applicable to the proceedings under Rent Restriction Ordinance is also erroneous. Though all the provisions of the C.P.C. are not applicable but the principle laid down in the Code of Civil Procedure are applied to the proceedings under the Rent Restriction Ordinance. Section 12(2), C.P.C. is a special provision. The Courts have been empowered to set aside their own judgments and orders which have been obtained by fraud. Another feature of the case is that the decree had been passed and it had become final and execution proceedings have been started. The orders of the Controller are to be executed by the Civil Court as a decree and, therefore, on that score also the provisions of section 12(2) of the C.P.C. are applicable. Learned counsel for the respondent has also not supported the order of the Civil Judge to the extent that an application under section 12(2), C.P.C. is not maintainable.

2. 'In the result the order impugned in this appeal is set aside. The learned Civil Judge is directed to frame the issues arising out of the pleadings and to decide the application on merits. The case is, therefore, remanded.