POP through District Collector and 2 Others VS Mst. Azra Begum etc

Stereo. 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.

2.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

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:

3.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

when period of limitation was provided under Section 115 of the Code.

4.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?

5.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.

6.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.

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 Suo- Motu jurisdiction is provided in succeeding paragraphs, while adjudication of the Civil Revision.

Submissions:

7.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.

8.Conversely, learned counsel for respondents primarily relied on the case of Jubilee General Insurance Company Ltd.

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

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 Determination:

9.Heard. Record perused.

10.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

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).

11.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

“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

jurisdiction and patently suffers from material irregularity and this position necessitates assumption and exercise of revisional jurisdiction.

12.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.

13.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.

(ASIM HAFEEZ)

JUDGE

Announced in open Court on this 2nd day of July, 2026.

(ASIM HAFEEZ)

JUDGE

Approved for reporting.

Judge.

Imran/*