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| 12(2) after appeal |
اپیل مسترد ہونے کے باوجود دفعہ 12(2) سی پی سی کی درخواست قابلِ سماعت ہو سکتی ہے، لاہور ہائی کورٹ
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📌 مختصر حقائق
⚖️ اہم قانونی نکات
✅ ہائی کورٹ نے قرار دیا کہ اگر فراڈ، دھوکہ دہی، ملی بھگت یا حقائق چھپانے کے واضح الزامات موجود ہوں تو ان کی مکمل عدالتی جانچ ضروری ہے۔
📖 نتیجہ
Must read judgment.
reo. HCJDA 38.
Judgment Sheet
IN THE LAHORE HIGH COURT
MULTAN BENCH, MULTAN
(JUDICIAL DEPARTMENT)
……………….
Civil Revision No.1845/2023
Province of Punjab, etc.
Versus
Mst. Azra Begum, etc.
JUDGMENT
Date of hearing:
01.07.2026.
Petitioners by:
Ms. Samina Mehmood Rana,
Assistant Advocate General.
Respondents by:
Mr. Israr Hayat Sulehri,
Advocate for respondents.
Mr. Hamood-ur-Rehman Awan,
Advocate for respondent No.2.
ASIM HAFEEZ, J. This Civil Revision is directed
against order 24.05.2022 (the „impugned order‟), whereby
petitioner‟s application, under Section 12(2) of Code of Civil
Procedure, 1908 (“the Code”), was dismissed - petitioners
had assailed the judgments and decrees dated 24.01.2003 and
23.09.2004 on grounds of fraud, collusiveness and deceptive
concealment of facts during the course of proceedings.
Facts essential for adjudication, to the extent of
impugned order, are that one Muhammad Masood Khan,
predecessor of the respondents, sought declaration qua
allotment of land, granted under Tube-Well Scheme. Later,
the grant was cancelled for reasons cited and adjudicated. It is
Civil Revision No.1845/2023.
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pertinent to mention that the allotment was not conclusively
recorded in the name of alleged allottee or his heirs till
to-date. Suit, upon trial, was decreed and appeal of the
petitioners was also dismissed. Petitioners pleaded fraud and
collusive misrepresentation and invoked remedy under
section 12(2) of the Code by approaching the Appellate Court
– since it had passed the last judgment.
It is pertinent to mention that in earlier round of
litigation application under Section 12(2) of the Code was
dismissed on 17.04.2008, while exercising jurisdiction under
Order VII Rule 11 of the Code. Order dated 17.04.2008 was
set aside by this Court vide judgment dated 14.02.2022
passed in Civil Revision No.1262/2008. Order of 24.05.2022
was passed during post-remand proceedings.
Objection of limitation:
At the outset, learned counsel for contesting
respondents objected to the maintainability of instant Civil
Revision on the question of limitation. It is pleaded that no
ground, let alone a sufficient ground, was pleaded in the
application seeking condonation of delay. Learned counsel
emphasized and referred to various judgments to reiterate the
point that application under section 5 of the Limitation Act,
1908 (“Act of 1908”) was not maintainable in wake of
restrictive nature of Section 29(2) of Act of 1908, in particular
Civil Revision No.1845/2023.
3
when period of limitation was provided under Section 115 of
the Code.
I am afraid that argument, seeking refuge behind
Section 29(2) of the Act of 1908, is misconceived in wake of
re-introduction of Article 162-A of the Act of 1908, hence,
application under Section 5 of the Act of 1908 can be filed
and question of limitation needed consideration. Whether
Civil Revision is barred by limitation, in the first place?
Learned Law Officer contends that Civil Revision was
filed on 05.09.2022, first day after summer vacation, and
same is within time, therefore, no objection regarding
limitation, could be raised in terms of benefit extended in
terms of Section 4 of the Act of 1908 – Circular No.2163
HR-IV dated 26.05.2022 is referred. Adds that Civil Revision
was filed within limitation, however certain discrepancies
were pointed and same were removed accordingly.
I take up the issue of limitation before adjudication on
merits. I proceed to dismiss the objection on two grounds –
second one being an additional ground. Firstly, Civil
Revision was instituted within limitation when benefit of
Section 4 of the Act of 1908 is extended – application for
condonation is filed by way of an abundant caution.
Objection of limitation was conspicuously missing from the
objection sheet.
Civil Revision No.1845/2023.
4
Secondly, I follow the ratio settled in the case of
Hafeez Ahmad and others V. Civil Judge, Lahore and others
(PLD 2012 Supreme Court 400), and felt constrained to
exercise Suo-Motu jurisdiction, if there is an iota of doubt
qua issue of limitation. The reasoning for exercise of SuoMotu jurisdiction is provided in succeeding paragraphs, while
adjudication of the Civil Revision.
Submissions:
Learned Law Officer, at the outset, submits that
application under Section 12(2) of the Code was not
dismissed on merits, but on technical ground, premised on the
reasoning that since petitioners have availed remedy of
appeal, therefore, remedy under Section 12(2) of the Code,
not being a concurrent remedy, is not available. Learned Law
Officer took the Court through the contents of application
under Section 12(2) of the Code and emphasized that grounds
pleaded were different and distinguishable from the grounds
of appeal – appeal was dismissed on 23.09.2004. It is
emphasized that fraud and collusiveness was specifically
pleaded at paragraph 6 of the application. Learned Law
Officer further submits that in wake of specific indication of
fraud in the application, it was appropriate for the court to
frame issues.
Conversely, learned counsel for respondents primarily
relied on the case of Jubilee General Insurance Company Ltd.
Civil Revision No.1845/2023.
5
V. Ravi Steel Company through Proprietor (2020 CLC 1440),
who submit that once appeal has been dismissed, the remedy
under Section 12(2) of the Code cannot be invoked. Further
submit that question of res judicata is not applicable since
suits, allegedly instituted in the name of Muhammad Masood
Khan, were filed after the demise of said person and death
certificate is referred. Adds that even otherwise copies of the
suits and orders passed were not produced before the trial
court or before appellate court, by way of additional evidence.
In support of submission, learned counsel placed reliance on
decisions reported as Mst. Haleema Mai V. Mst. Begum Mai
and 4 others (PLJ 2010 Lahore 666), City District
Government, Lahore through District Coordination Officer,
Lahore V. Mian Muhammad Saeed Amin (2006 SCMR 676),
Mrs. Amina Bibi through General Attorney V. Nasrullah and
others (2000 SCMR 296), Haji Ahmed and others V. Noor
Muhammad (2004 SCMR 1630), Major (Retd.) Pervez Iqbal
V. Muhammad Akram Almas and others (2017 SCMR 831),
Allah Dino and another V. Muhammad Shah and others
(2001 SCMR 286), Hafeez Ahmad and others V. Civil Judge,
Lahore and others (PLD 2012 Supreme Court 400), Mst.
Fehmida Begum V. Muhammad Khalid and another (1992
SCMR 1908), Asmat V. Sahib Rokhan and 7 others (PLD
2023 Peshawar 64), Regional Police Officer, Dera Ghazi
Khan Region and others V. Riaz Hussain Bukhari (2024
SCMR 1021), Muhammad Kazim and another V. Province of
Civil Revision No.1845/2023.
6
Balochistan and others (2000 SCMR 230), Hafeez Ahmad
and others V. Civil Judge, Lahore and others (PLD 2012
Supreme Court 400) and Sindh Irrigation and Drainage
Authority V. Province of Sindh and another (2026 SCMR
190).
Determination:
Heard. Record perused.
- I have examined the decision in the case of “Jubilee
General Insurance Company” (supra), which on the face of it,
is distinguishable on facts. In referred case it was observed
that application under Section 12(2) of the Code was filed
during the pendency of appeal and while examining the
contents of application, it was further observed that contents
of application filed under Section 12(2) of the Code as well
as grounds of appeal were verbatim/analogous – this
consciously recorded findings is enough to distinguish the
dictum laid.
Learned counsel for respondents have not appreciated
that in the case of “Jubilee General Insurance Company”
(supra) Court had not dismissed the application outrightly but
examined and considered contents thereof – such
conspicuous scrutiny was not undertaken while passing
impugned order but application was dismissed on the premise
that once remedy of appeal was availed the remedy of
Civil Revision No.1845/2023.
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application under section 12(2) of the Code ceased to be
available. This determination manifests an erroneous reading
of the ratio in the case of “Jubilee General Insurance
Company” (supra).
- There is another significant issue but not appreciated
by the court while considering the application. At paragraph 6
of the application a specific allegation was raised, wherein
instance of fraud, deceptive concealment and
misrepresentation was pleaded and it was emphasized that
decree(s) was secured deceptively. In this behalf reference
was made that copies of the suits and orders of withdrawal
were not produced to avoid adjudication qua applicability of
doctrine of resjudicata. Record depicts that suits were
instituted and withdrawn with respect to grant in question.
Respondents disowned ownership of the suits and it is
pleaded that suits were filed after death of grantee, hence, no
repercussions thereof are attributable to the deceased.
Whether those suits were instituted by the deceased or
allegedly instituted at his behest by alleged attorney; these are
questions of fact and determination thereof is essential – this
determination is in addition to the issue of alleged fraud
played and collusiveness demonstrated during the course of
proceedings. Whether dismissal of appeal is a valid ground to
deny remedy under section 12(2) of the Code. Answer is
simple “no”. Now I deal with the judgments cited – Case of
Civil Revision No.1845/2023.
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“Jubilee General Insurance Company” (supra) was
distinguished. Various judgments refer to inapplicability of
section 5 of the Act of 1908 in wake of restrictive command
under section 29(2) of the Act of 1908, which judgments after
re-insertion of Article 162-A of the Act of 1908, lost efficacy.
Few judgments had reiterated the settled principle that delay
of each day has to be explained – in absence of delayed filing
all those judgments lose relevance. Judgments dealing with
the merits of application under section 12(2) of the Code are
not relevant since application of the petitioners under section
12(2) of the Code was not dismissed on merits but on issue of
maintainability – that too on the ground that appeal was filed
and dismissed. In none of the judgments, though each is
relevant in the context of underlying facts thereof, it was
outrightly held that dismissal of appeal would place an
absolute embargo on filing of application under Section 12(2)
of the Code – issue of maintainability is dependent upon
peculiar facts of each case. Even otherwise, in cases where
appeal has been dismissed the remedy of Section 12(2) of the
Code is still available, provided conditions prescribed are met.
Court was required to consider the question of compliance of
the requirements under section 12(2) of the Code, which
erred in law in dismissing it simplicitor on the premise that
appeal was preferred and same had been dismissed. In the
circumstances, I find that impugned order is not legally
sustainable, which manifest gross error in the exercise of
Civil Revision No.1845/2023.
10
- In view of the aforesaid, this Civil Revision is allowed,
order dated 24.05.2022 is set aside and application under
Section 12(2) of the Code shall be deemed pending before the
court concerned, whereupon issues shall be framed and
parties be directed to lead evidence accordingly, where-after
the Court shall decide the application.
It is observed that observations herein made are solely
for the purpose of deciding the lis and said observations shall
neither prejudice any party and nor affect / influence
determination of the application of the petitioners on merits.
Civil Revision No.1845/2023.
9
jurisdiction and patently suffers from material irregularity
and this position necessitates assumption and exercise of
revisional jurisdiction.
- Evidently that application under section 12(2) of the
Code has been within three years of the passing of judgment
of the Appellate Court, dated 23.09.2004, and applicants have
questioned the legality of judgment of 23.09.2004 – which is
challengeable before said Court in terms of the decision in the
case of Shahzadi Maharunisa and another V. Mst. Ghulam
Sughran and another (PLD 2016 Supreme Court 358).
Upon perusal of the contents of the application and plea of
fraud, misrepresentation and deceptiveness, I find it
appropriate that matter require determination and only
plausible way-forward is to frame issues and invite parties to
lead evidence. There is no doubt that controversy involves
factual issues and determination thereof essentially requires
evidence. There is another significant issue and that is the
effect of absence of conclusively executed allotment letter /
deed in favour of the grantee. I leave it to the judgment of the
court to decide if an additional issue is required to be framed
for determining effect of non-issuance of a document of
allotment in favour of the grantee.
In the circumstances, this appears to be a fit case for
deciding application under section 12(2) of the Code upon
recording of evidence.
(ASIM HAFEEZ)
JUDGE
Announced in open Court on this 2
nd day of July, 2026.
(ASIM HAFEEZ)
JUDGE
Approved for reporting.
Judge