Secretary to Government of Pakistan, Ministry of Defence, Islamabad Vs M/S Model Town Corporation Ltd, through its Chairman Abdul Rehman

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.1241/2011.

Secretary to Government of Pakistan, Ministry of Defence, Islamabad Vs. M/S Model Town Corporation Ltd., through its Chairman Abdul Rehman.

Date of hearing 12.01.2026

M/s. Muzamil Khan, Nasir Mehmood, Advocates and Mr. Sanaullah, Addl; Attorney General, for the petitioners/Federation. M/s. Muhammad Masood Khan, Syed Faisal Hussain Shah and Muhammad Nasir Khan, Advocate, alongwith Shekeel Hassan Qaiser, Director MTC.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - Through this common judgment, I intend to dispose of the instant Civil Revision along with CM 12(2) No.16/2011 titled “Government of Pakistan, Secretary, Ministry of Defence, Islamabad through Military Estate Officer Peshawar Vs. M/S Model Town Corporation Ltd., through its Chairman Abdul Rehman”, CM 12(2) No.03/2012 titled “Secretary to Government of Pakistan Ministry of Defence through Military Estate Officer, Peshawar Vs. M/S Model Town Corporation Ltd., through its Chairman Abdul Rehman” and COC No. 449-P/2022 arising out of COC No. 44/2007 in C.R. No. 38/1991 titled M/S Model Town Corporation Ltd., through its Director Shakeel Hassan Qaiser v. Mr. Safiullah Khan, Deputy Commissioner, Peshawar & others, as all the aforementioned matters emanate from the same factual matrix and involve identical questions of law and fact.

2.The essential facts forming the backdrop of the instant petitions are that Arbab Noor Muhammad Khan and others instituted Civil Suit No. 381/1 on 27.09.1972 before the competent Civil Court at Peshawar against the Federation of Pakistan through the Secretary, Ministry of Defence, Islamabad, in a representative capacity on behalf of the “Malikans of the Shamilat” of Tehkal Bala, Peshawar. The relief sought was a declaration to the effect

that the plaintiffs, along with the body of proprietors represented by them, were the lawful owners in possession of the property fully described in the headnote of the plaint. It was further asserted that the revenue entries recorded in favour of “Sarkar Daulat Madar” ( )سرکار دولتمدارwere illegal, incorrect, without lawful authority and not binding upon the proprietary rights of the plaintiffs; that the defendants had no right, title, interest, or concern whatsoever in the suit property; and that the impugned entries were liable to rectification and cancellation. The suit was contested by the defendant–Federation on diverse legal as well as factual grounds. In the written statement it was, inter alia, pleaded that a notification under Section 4 of the Land Acquisition Act had already been issued in respect of the property in question and that the same vested in the Defence Department. Upon completion of the trial, recording of evidence, and hearing of learned counsel for the parties, the learned Senior Civil Judge, Peshawar, vide judgment and decree dated 06.03.1975, decreed the suit in favour of the plaintiffs. Feeling aggrieved, the Government of Pakistan through the Secretary, Defence, Rawalpindi, preferred Civil Appeal No. 133/13 of 1975 before the appellate forum. Subsequently, during the pendency of the appellate proceedings, another suit bearing Civil Suit No. 32/1-A was instituted on 18.02.1977 by Abdul Rehman Qaiser, Chairman, M/S Model Town Corporation, against the proprietary body of the Shamilat of Tehkal Bala, comprising approximately 1,310 defendants. In the said suit, a declaration was sought to the effect that the plaintiff-company was the lawful owner in possession of 2,943 Kanals and 14 Marlas out of the total land measuring 8,458 Kanals and 04 Marlas, as detailed in the headnote of the plaint, and that the revenue entries reflecting ownership in favour of the proprietary body of the Shamilat were erroneous, illegal, and repugnant to the rights of the plaintiff. It was specifically averred that the plaintiff was a limited company established with effect from 22.12.1976 for the development of a “Model Town” project and that it had purchased the aforementioned land from the defendants at the agreed sale consideration of Rs. 16,000/- per Kanal, whereafter possession was delivered to the company. It was further pleaded that the

defendants had undertaken to effect formal transfer of the property through attestation of mutation in favour of the plaintiff-company; however, despite receipt of consideration and delivery of possession, they failed and refused to honour their commitment, thereby compelling the institution of the aforesaid suit.

3.During the pendency of Civil Suit No. 32/1-A, a compromise was presented before the trial Court wherein it was asserted that the defendants had unequivocally acknowledged the claim of the plaintiff with respect to ownership and possession of the suit property. It was further stated that a sum of Rs. 5,12,000/- had been paid by the plaintiff-company as full and final settlement of the dispute through Cheque No. ABL-0802511 dated 08.03.1977, drawn by the Chairman of Model Town Corporation Ltd. on Allied Bank Limited, Tehkal Payan Branch. The defendants admitted receipt of the aforesaid amount and consented to the passing of a decree in favour of the plaintiff in terms of the compromise. In pursuance thereof, the statements of Abdul Rehman Qaiser, Chairman of the plaintiff-company, and learned counsel representing the defendants were recorded on 02.04.1977. Consequently, the suit was decreed on 12.04.1977 on the basis of the said compromise. The record reveals that the suit had been instituted on 18.02.1977 and was decreed within a span of less than two months, at a time when Civil Appeal No. 133/13 of 1975 was sub judice. Subsequent to the decree in Civil Suit No. 32/1-A, an application was moved in Civil Appeal No. 133/13 of 1975 seeking impleadment of M/s Model Town Corporation Ltd., through its Chairman, as a party to the appeal. It was contended therein that by virtue of the compromise decree dated 02.04.1977 passed by the Civil Judge 1st Class, Peshawar, the applicant-company had acquired ownership of 2,943 Kanals and 14 Marlas out of the total suit land and, therefore, possessed a direct and substantial interest in the subject matter of the pending appeal, likely to be adversely affected by its outcome. Similarly, the Government of Pakistan, being the appellant in Civil Appeal No. 133/13 of 1975, filed an application for impleadment of Abdul Rehman Khan son of Mian Hassan-ud-Din, resident of House No. 1945, Mohallah Agha Shafique Kareem Pura, Peshawar, as a party to the appeal. It was

alleged that during the pendency of Civil Suit No. 381/1, a portion of the suit property had been transferred in favour of Abdul Rehman Qaiser and, as such, he was a necessary party whose rights would be prejudicially affected in his absence. Both applications for impleadment were allowed on 05.02.1978. Thereafter, Civil Appeal No. 133/13 of 1975 was allowed by Mr. Atta Ullah Khan, learned Additional District Judge, Peshawar (as he then was), vide judgment dated 20.06.1984. The learned appellate Court held that the plaintiffs had failed to discharge the burden of proof and had produced no cogent evidence in support of their claim; consequently, the decree dated 06.03.1975 passed by the learned Senior Civil Judge was found to be unsustainable in law and was set aside. The judgment and decree dated 20.06.1984 passed in Civil Appeal No. 133/13 of 1975 were assailed before this Court through Civil Revision No. 365 of 1984 by the plaintiffs of Civil Suit No. 381/1, along with Sheikh Muhammad Abdullah, Abdul Jabbar, and M/s Model Town Corporation Ltd. through its Chairman, Mr. Abdul Rehman Qaiser. However, the revision petition was dismissed in default on 10.12.1986. An application seeking restoration thereof was subsequently filed, but after hearing learned counsel for the petitioners, the same was dismissed by this Court on 28.01.1987. The order dated 28.01.1987 was further challenged before the Honourable Supreme Court of Pakistan through Civil Petition No. 68 of 1987. After hearing the parties, the august Court refused leave and dismissed the petition vide judgment dated 02.12.1990. The record further discloses that an application for setting aside the ex parte decree in Civil Suit No. 32/1-A was filed by M/s Model Town Corporation Ltd., which application was contested. During the pendency of the said application, the learned Civil Judge, vide order dated 25.02.1989, dismissed an application whereby certain defendants had sought deletion of their names from the array of parties on the basis of the compromise. The said order was challenged before the learned District Judge; however, the appeal was dismissed on 11.10.1990. Furthermore, the order dated 25.02.1989, whereby the application for setting aside the ex parte decree was dismissed, was assailed before this Court through

Civil Revision No. 38 of 1991. After hearing the parties, this Court disposed of the revision petition in the following terms:– “This Court would, therefore, dispose of the revision petition in a manner that there shall be deemed to have been passed a compromise decree in favour of the plaintiff/petitioner as against the defendants/respondents in a number of 538 who were a party to the compromise deed and who recorded a statement to the said effect through their attorneys in the trial court and that the plaintiff/petitioner’s suit as against the defendants/respondents in a number of 772 including the contesting defendants/respondents, the plaintiff/petitioner’s suit shall be deemed as abandoned and dismissed and that no ex-parte decree shall be deemed to have been passed in favour of the plaintiff/petitioner as against them since the learned counsel for the plaintiff/petitioner also requests the court that he may be allowed as against those defendants/respondents to withdraw from his suit with a permission to file fresh suit with respect to the subject matter as against them, if so advised and that he would be contended with the compromise decree as against the defendants/respondents who had not so far contested the compromise decree. This revision petition is disposed of in the above terms and conditions with no order as to costs.”

Record also reflects that an application under Section 12(2) CPC was filed for setting aside of the order dated 18.12.1994 before this Court through CM No.675/1997 by Musharaf Khan etc. (the applicants), which was dismissed on 16.10.1998.

4.The present lis has arisen out of an application instituted by the petitioners before the learned Civil Judge, Peshawar, under Section 12(2) of the Code of Civil Procedure, 1908, seeking setting aside of the decree passed in Civil Suit No. 32/1-A in favour of M/s Model Town Corporation Ltd. (plaintiff in the said suit and defendant in the proceedings referred to hereinabove). In the said application, it was contended that the property in dispute originally vested in the Central Government and that Civil Suit No. 381/1, instituted by Arbab Noor Muhammad Khan and others for

declaration to the effect that the revenue entries in favour of “Sarkar Daulat Madar” were incorrect, had been decreed on 06.03.1975. However, the said decree was subsequently reversed in appeal vide judgment dated 20.06.1984. It was further pleaded that during the pendency of the aforesaid appeal, the petitioners came to know that a compromise decree had been obtained in Civil Suit No. 32/1-A; consequently, an application for impleadment of M/s Model Town Corporation Ltd. had been filed in the appellate proceedings. The gravamen of the petitioners’ case under Section 12(2) CPC was that the decree passed in Civil Suit No. 32/1-A was the product of collusion, concealment of material facts, and fraud practiced upon the Court by the plaintiff and the defendants therein. It was asserted that the defendants in Suit No. 32/1-A were not the lawful owners of the suit property and, therefore, lacked the legal competence to alienate or transfer any proprietary rights, whether through a private transaction or by way of compromise before the Civil Court. Consequently, the compromise decree founded upon such alleged misrepresentation was void and liable to be set aside. It was further contended that the decree in Civil Suit No. 32/1-A was intrinsically dependent upon and founded on the earlier decree passed in Civil Suit No. 381/1. Since the latter decree had been set aside in appeal and no longer held the field, the very substratum of the compromise decree in Suit No. 32/1-A stood extinguished, rendering it unsustainable in law. The application under Section 12(2) CPC was strenuously contested by M/s Model Town Corporation Ltd. through its Chairman, Abdul Rehman Qaiser. Upon hearing the parties, the learned Civil Judge-V, Peshawar, vide order dated 02.02.2011, dismissed the application on the ground of limitation, holding the same to be time-barred. Aggrieved thereby, the petitioners preferred an appeal, which was heard and dismissed by the learned Additional District Judge-III, Peshawar, vide judgment dated 26.05.2011. The learned appellate Court upheld the impugned order, observing that invocation of the provisions of Order VII Rule 11 CPC for rejection of the application under Section 12(2) CPC was legally sound and well- reasoned. Hence, the instant petition.

5.CM 12(2) No.16/2011 has been filed by the Government of Pakistan, through the Secretary, Ministry of Defence, Islamabad, via the Military Estate Officer, Pakistan, seeking the setting aside of the judgment passed in COC No.44/2007 along with CM No.350/2011, dated 30.05.2011. Vide the said judgment, the respondents in the Contempt of Court application were directed to hand over vacant possession of the land to the applicants in the COC within a period of three months, and the applicants in the COC were also held entitled to receive rent of the land decreed in their favour in Suit No.32/1-A, which was being utilized and occupied by the official respondents. It was contended in the application filed under Section 12(2) CPC that the petitioners were not parties to Suit No.32/1-A, which had been filed against the decree-holders of Suit No.381/1. After obtaining a decree in Suit No.381/1 and before the decision of the appeal, the decree-holders allegedly entered into an agreement with the plaintiffs of Suit No.32/1-A, on the basis of which the said suit was filed and was decreed within a short span of two months. However, upon acquiring knowledge thereof, not only the plaintiffs in Suit No.381/1 but also the decree-holders of Suit No.32/1-A filed their respective applications for impleadment in the appeal filed by the petitioners before the appellate court, which were accordingly allowed. Thus, the decree passed in Suit No.32/1-A was subject to the final outcome of the judgment and decree in Suit No.381/1, which was ultimately decided in favour of the petitioners. It was further contended that since the petitioners were not parties to the initial suit, and as a decree had been passed in their favour in Suit No.381/1, no proceedings under the Contempt of Court Ordinance could lawfully be initiated against them. It was asserted that neither was any decree of the Court violated nor was there any intentional or willful disobedience of any order of the Hon’ble Court by the present petitioners. Consequently, the findings recorded by this Court in the COC proceedings were the result of fraud and misrepresentation of facts, when the actual facts were concealed.

6.The Secretary to the Government of Pakistan, Ministry of Defence, through the Military Estate Officer, Peshawar has filed

CM 12(2) No.03/2012 read with Sections 151, 152 and 114 qua Order XLVII along with the enabling provisions of Section 12(2) CPC, seeking the setting aside of the judgments and orders dated 18.12.1994 and 08.11.2004. It is contended therein that land measuring 1,789.89 acres, forming part of the revenue estate of Kacha Garhi, Regi Lalma, was acquired by the Government of Pakistan after completion of the acquisition proceedings, and a proper mutation was attested in the name of the Federal Government (Sarkar Daulat Madar). Accordingly, the Federal Government was recorded as owner of the property in the ownership column. However, in the year 1973, one Arbab Noor Muhammad and four others filed a representative suit against the Government of Pakistan and the Collector, Peshawar, which was decided in their favour. The appeal filed thereagainst was, however, allowed on 20.06.1984 and the judgment and decree of the appellate court were maintained up to the Hon’ble Supreme Court of Pakistan. Despite this, Arbab Noor Muhammad and others, who were representatives of the proprietary body of the revenue estate of Regi Lalma, in collusion with M/S Model Town Corporation (the plaintiff in Suit No.32/1-A), filed a suit for declaration without impleading the Government of Pakistan as a necessary party and through such collusion, succeeded in obtaining a decree dated 02.04.1977. Since the vendors in Suit No.32/1-A were no longer owners of the property after the decree in Suit No.381/1 was set aside, they were not competent to alienate or convey any title in favour of M/S Model Town. In view of the above, the judgment and order passed in C.R. No.38/1991 dated 18/12/1994 are alleged to be the result of fraud, collusion, and misrepresentation of facts, particularly as Dr. Iftikhar Ahmad was a party to the appeal along with M/S Model Town. Consequently, no order in the COC or in any other proceedings could lawfully be passed in favour of M/S Model Town. The entire proceedings in the COC and C.R. No.38/1991 are stated to be not only contrary to the facts but also the outcome of collusion between M/S Model Town and their vendors.

7.COC No.449-P/2022 in COC No.44/2007 in C.R No.38/1991 has been filed by the applicant under the provision of

Contempt of Court Ordinance read with Article 204 and 187 of Constitution of Islamic Republic of Pakistan, 1973 for initiating proceedings against respondents for willfully committing contempt of the directions of this Court, violating the directions of the Hon’ble Supreme Court vide judgement dated 01.03.2022 and of this Court dated 30.05.2011 on the ground that the applicant (M/S Model Town Corporation) is the owner of the property in terms of the judgement in C.R No.38/1991 and exclusively owner in possession of property measuring 2443 Kanal 14 marla in 26 survey numbers on the strength of the decree in Suit No.32/1-A dated 02.04.1977, which decree has never been questioned by the respondents; thus, in view of the judgements referred to above and being beneficiary of the property alienated in its favour through mutation No.21393 is entitled for restoration of possession. Since, the respondents have failed to handover vacant possession of the land to the applicant; thus, their act is violative to the direction of the Hon’ble Supreme Court and of this Court vide judgement dated 30.05.2011. The application has been resisted by filing of written reply by respondents Nos.4, 5 and 6 by alleging therein that they have never ever disobeyed the order of the Court. Since, the matter pertains to the determination of the rights of the applicant based on the judgement passed in its favour in the year 1977 in juxtaposition with the judgement in appeal of Suit No.381/1; hence, it also requires to be decided with the connected matters through instant Civil Revision.

8.CM No.81-P/2025 in C.R No.1241/2011. Respondent No.1 (M/S Model Town Corporation) has filed this civil misceleanuous application under Section 94(c) read with Order XXXIX Rule 2(3) with enabling provisions of Section 151 of the Code of Civil Procedure, 1908 for implementation of the stay order dated 24.07.2025.

9.M/s. Sanaullah AAG, Muzammil Khan and Nasir Mehmood, Advocates contended that no doubt in Suit No.381/1, a judgement was passed against petitioners but it was questioned within time before the court of competent jurisdiction when it transpired that based on the judgement and decree in Suit No.381/1, the decree-holders (plaintiffs of Suit No.381/1) in

connivance with M/S Model Town Corporation Ltd., purportedly transferred the property to the latter without any locus standi violative to the principle of pendant lit in term of Section 52 of Transfer of Property Act, 1882 whereby, M/S Model Town has succeeded in getting a decree in Suit No.32/1-A; thus, they were constrained to submit the application for their impleadment of the decree-holder in the appeal submitted by the petitioners and likewise the decree-holder too filed an application for its impleadment in order to protect its right; thus, after hearing the parties, learned appellate court was pleased to allow the appeal, set aside the judgement and decree in Suit No.381/1, which was the basis of Suit No.32/1-A. They argued that defendants of Suit No.32/1-A were never ever the owners of the property. They were standing and relying upon the verdict in their favour through Decree No.381/1, which decree has been set aside then neither the proprietary rights of the property could be transferred to M/S Model Town Corporation nor Suit No.32/1-A without impleadment of Sarkar Daulat Madar could be proceeded ahead and decreed. They vociferated that after setting aside of a decree in Suit No.381/1, the entire superstructure of decree of Suit No.32/1- A has fallen to the ground. According to them, this was the reason that they appeared before the court, submitted the application for their impleadment, which was allowed, the judgement of the court of appeal was maintained from this Court and Civil Petition for Leave to Appeal filed thereagainst was dismissed and leave was refused. They vociferated that the judgement and decree of the Appeal Court in Suit No.381/1 had made it clear that the plaintiffs of Suit No.381/1 had neither any locus standi nor cause-of-action to file the suit against the petitioners and when so, the institution of the second suit i.e. 32/1-A from its inception was a mockery with the system based on the principle that no one can transfer the better title than its own and when the decree-holders were no more the owners of the property, they could not alienate any rights in favour of M/S Model Town Corporation. They added that on getting the knowledge of decree in Suit No.32/1-A, they were impleaded in appeal of Suit No.381/1, which fact could not be ignored that the alleged manipulation between M/S Model Town and defendants of

Suit No.32/1-A has been committed during pending adjudication of appeal in Suit No.381/1, which was continuation of the suit; thus, any alienation made during pending adjudication of the suit is subject to the final outcome of the suit. They went on to say that application under Section 12(2) CPC has been filed before this Court in term of the judgements of the Hon’ble Supreme Court in the cases of “Nasrullah Khan & others Vs. Mukhar-ul-Hassan & others” (PLD 2013 SC 478), “Province of Punjab through Collector, Sialkot Vs. Muhammad Irshad Bajwa” (1999 SCMR 1555); thus, no doubt that earlier the application under Section 12(2) CPC was filed before Civil Court as till then the law was not clear rather since the decree of learned trial court in Suit No.32/1- A was in field, as such, the application was filed before Civil Court and the application which has been filed under Section 12(2) CPC alongwith other enabling provisions of law i.e. Order XLVII Rule 1 Sections 114, 151 and 152 CPC for the ends of justice to decide the fate of all the matters in terms of the judgement of the Hon’ble Supreme Court through which, the matter was remanded to this Court. In support of their submissions, they placed reliance on the cases of “Gulshan Ara Vs. The State” (2010 SCMR 1162), “Fasih- ud-Din Khan & others Vs. Government of Pubjab & others” (2010 SCMR 1778), “Member Board of Revenue/Chief Settlement Commissioner, Pubjab, Lahore Vs. Abdul Majeed & another” (PLD 2015 SC 166), “Application by Abdul Rehman Farooq Pirzada Vs. Begum Nasrat Ali Gonda V. Federation of Pakistan & others” (PLD 2013 SC 829), “Major (Retd). Ahmed Nadeem Sadal & 03 others Vs. Federation of Pakistan through Secretary Sports, Islamabad & 03 others” (2015 CLC 34), “Mst. Zainab through Attorney Vs. Mst. Muni & others” (2004 SCMR 1786), “Muhammad Younas Khan & 12 others Vs. Government of NWFP through Secretary, Forest and Agriculture, Peshawar & others” (1993 SCMR 618), “Miskeen Ahmed Vs. Mst. Sajida & 02 others” (2012 CLC 160), “Syed Sharif-ul-Hassan through L.Rs. Vs. Hafiz Muhammad Amin & others” (2012 SCMR 1258), “Wajahat Hussain Vs. Aftab Ahmed & others” (2001 MLD 1101), “Hafeez Ahmad & others Vs. Civil Judge, Lahore & others” (PLD 2012 SC 400), “S. Sharif Ahmed Hashmi Vs. The Chairman, Screening

Committee, Lahore & another” (1980 SCMR 711), “Province of the Punjab through Secretary Settlement and Rehabilitation Department, Lahore Vs. Akhtar Ali Khan & others” (2007 SCMR 459), “Muhammad Anwar & 02 others Vs. Khuda Yar & 25 others” (2008 SCMR 905), “Moulana Atta-ur-Rehman Vs. Al-Hajj Sardar Umar Farooq & others” (PLD 2008 SC 663), “Muhammad Raz Khan Vs. Government of NWFP & another” (PLD 1997 SC 397), “Jadoon Khan Vs. Abdul Karam & 03 others” (2017 YLR 1031), “Mst. Tabassum Shaheen Vs. Mst. Uzma Rahat & others” (2012 SCMR 983), “Muhammad Ashraf Butt & others Vs. Muhammad Asif Bhatti & others” (PLD 2011 SC 905), “Saeeda Sultan Vs. Liaqat Ali Orakzai & others” (PLD 2021 SC 671), “National Highway Authority through Ghulam Mujtaba, G.M, Lahore Vs. Mazhar Siddique & others” (2023 SCMR 493), “Umar Nazir Vs. Mukaram Khan” (2021 MLD 1676), “Saeeda Sultan Vs. Liaqat Ali Orakzai & others” (PLD 2021 SC 671), “Haji Khawar Saleem Vs. The State” (2001 SCMR 905), “Gulshan Ara Vs. The State” (2010 SCMR 1162), “Fasih-ud-Din Khan & others Vs. Government of Punjab & others” (2010 SCMR 1778), “Wajahat Hussain Vs. Aftab Ahmed & others” (2001 MLD 1101), “Executive District Officer (Education), Rawalpindi Vs. Muhammad Younas” (2007 SCMR 1835), “Yousaf Ali Vs. Muhammad Aslam Zia & 02 others” (PLD 1958 SC [Pak] 104), “Muhammad Tariq Khan Vs. Khwaja Muhammad Jawad Asami & others” (2007 SCMR 818), “Pakistan Peoples Party Parliamentarians (PPPP) through its Secretary General & 04 others Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad & 04 others” (PLD 2022 SC 574), “Fazal Ellahi (Deceased) through his legal heirs Vs. Mst. Zainab Bi” (2019 SCMR 1930), “Faqir Ali & others Vs. Sakina Bibi & others” (PLD 2022 SC 85) and “Muhammad Rashid Vs. Hafiz Muhammad Sadiq & 03 others” (PLD 1997 SC [AJ&K] 28).

10.M/s Muhammad Masood Khan, Syed Faisal Hussain and Muhammad Nasir Khan, Advocates, representing the respondents contended that there was a decree in Suit No.381/1 in favour of M/S Model Town, which fact was in the knowledge of petitioners for which, an application was moved in Appeal Court against the judgement of Suit No.381/1 but neither the validity and correctness

of the decree was challenged in Suit No.32/1-A before the court of competent jurisdiction as then it was nor thereafter till 2011; hence, the application of the petitioners under Section 12(2) CPC was barred by law and the decree so granted in favour of M/S Model Town still holds the field. According to him at the time of grant of decree, the vendee/defendants of Suit No.32/1-A were the owners of the property on the strength of the decree, which aspect has been decided by the Hon’ble Supreme Court. Mr. Shakeel Hussain Qaiser contended that the owners were compensated and an amount of Rs.4,65,00,000/- were paid to them. Mutation No.2369 was attested in favour of the respondents Johar Model Town and in view of the above, the courts below have rightly appreciated this fact, which resulted into dismissal of the application. Learned counsel representing respondents in support of their submissions placed reliance on the cases of “Regional Police Officer, Dera Ghazi Khan Region & others Vs. Riaz Hussain Bukhari” (2024 SCMR 1021), “Town Administration & another Vs. Muhammad Khalid & others” (2024 SCMR 1852), “Chief Engineer Gujranwala Vs. Khalid Mehmood” (2023 SCMR 291), “Kiramat Khan Vs. IG Frontier Corps & others” (2023 SCMR 866), “Khyber Pakhtunkhwa, Revenue Authority (KPRA) through Director General, Peshawar Vs. Messrs Legacy Pharmaceutical (Pvt.) Limited, Peshawar” (2023 PTD 56), “Asad Ali Vs. the Bank of Punjab” (PLD 2020 SC 736), “Khushi Muhammad through L.Rs Vs. Mst. Fazal Bibi & others” (PLD 2016 SC 872), “Dr. Muhammad Javaid Shafi Vs. Syed Rashid Arshad & others” (PLD 2015 SC 212), “United Bank Limited Vs. Noor-un-Nisa” (2015 SCMR 380), “Gen. (R) Parvez Musharraf Vs. Nadeem Ahmed & another” (PLD 2014 SC 585), “Sarosh Haider Vs. Muhammad Javed Chundrigar & others” (PLD 2014 SC 338), “Ghulam Hussain Ramzan Ramzan Vs. Collector of Customs” (2014 SCMR 1594), “M/S Blue Star Spinning Vs. Collector of Sales Tax” (2013 SCMR 587), “Muhammad Islam Vs. Inspector General of Police” (2011 SCMR 8), “Begum Syeda Azra Masood Vs. Begum Noshaba Moeen & others” (2007 SCMR 914), “Sarfaraz Vs. Muhammad Aslam Khan” (2001 SCMR 1062), “Muhammad Raz Khan Vs. Government of NWFP & another” (PLD 1997 SC 397), “Ahsan

Ali & others Vs. Vs. District Judge & others” (PLD 1969 SC 167), “Shahabzadi Muharunisa Vs. Mst. Ghulam Sughran” (PLD 2016 SC 358), “Nasrullah Khan Vs. Mukhtar” (PLD 2013 SC 478), “Muhammad Bakhsh Vs. Faraza” (2008 CLC 283 Lahore), “Deputy Commissioner Vs. Abdul Salam” (PLD 1993 Quetta 121), “Syed Shabbar Raza Rizwi Vs. Federation of Pakistan” (2018 SCMR 514), “Khudadad Vs. Syed Ghazanfer” (2022 SCMR 933), “Azeem Khan Vs. Commissioner” (2023 CLC 600 Baluchistan), “Mst. Kulsoom Bibi & another Vs. Muhammad Arif & others” (2005 SCMR 135), “Muhammad Zubair Vs. Additional District Judge” (2023 YLR 200 Lahore), “Baz Muhammad Kakar Vs. Federation of Pakistan” (PLD 2012 SC 870), “Amir Aftab Hussain Vs. Land Acquisition Collector, Punjab Provincial Highway Department Rawalpindi & 04 others” (PLD 2012 Lahore 440), “Nabi Bux & others Vs. Land Acquisition Officer & others” (2003 CLC 1914 Karachi), Ahmad Nawaz Khan Vs. Muhammad Jaffar Khan & others” (2010 SCMR 984), “Themas & 16 others Vs. Dawar Khan & 07 others” (PLD 1990 SC 629) and “Israr-ul-Haq & 07 others Vs. Noor-ud-Din & 03 others” (2017 YLR 2262 Sindh).

11.Arguments heard, record perused.

12.The institution of Civil Suit No. 381/1 by Arbab Noor Muhammad Khan and others, in a representative capacity on behalf of the proprietary body, being the owners of the Shamilat of Revenue Estate Tehkal Bala, against the Government of Pakistan through the Secretary, Ministry of Defence, Islamabad/Rawalpindi, and the Collector, Peshawar, seeking a declaration that land measuring 8,665 Kanals and 06 Marlas situated in Village Tehkal Bala, Tehsil and District Peshawar, was their lawful ownership in possession, and that the entries recorded in the record-of-rights were erroneous, contrary to fact, and ineffective upon their proprietary rights, is an admitted and undisputed fact. It is equally beyond cavil that the said suit was contested by the defendants (the present petitioners) on the categorical plea that the disputed land had already been acquired in accordance with law and that entries pursuant to the acquisition proceedings had validly been incorporated in favour of defendant No.1, i.e., the Federal

Government/Defence Department. Upon conclusion of trial, the learned Senior Civil Judge, Peshawar, vide judgment and decree dated 06.03.1975, decreed the suit against the present petitioners/defendants of Civil Suit No. 381/1. Although the copy of the plaint reflects the suit number as 381/1, the requisitioned judicial record indicates that it was renumbered as Civil Suit No. 10/1-A and was subsequently placed on the file of Civil Appeal No. 133/13 as Exhibit P-1 on 13.09.1978 (requisitioned record, page 10). Notwithstanding the discrepancy in numbering, it stands admitted that Arbab Noor Muhammad Khan along with four others prosecuted the suit in a representative capacity on behalf of the proprietors of Village Tehkal Bala. The aforesaid judgment and decree were assailed through Civil Appeal No. 133/13, instituted on 06.05.1975. During the pendency of the appeal, the question of limitation was adjudicated by the learned Additional District Judge- III, Peshawar, who, vide order dated 15.05.1979, held that the appeal had been filed within time and was competent. Significantly, subsequent to the decree dated 06.03.1975 in Civil Suit No. 381/1 but during the pendency of Civil Appeal No. 133/13, Civil Suit No. 32/1-A was instituted on 18.02.1977 by M/s Model Town Corporation Ltd., through its Chairman, Abdul Rehman Qaiser, against the entire proprietary body of Village Tehkal Bala, numbering approximately 1,309 defendants. In the said suit, a declaration was sought to the effect that the plaintiff-company was the lawful owner of land measuring 2,443 Kanals and 14 Marlas out of a total area of 8,458 Kanals and 04 Marlas comprised in the revenue estate of Tehkal Bala, allegedly purchased from the defendants at the rate of Rs. 16,000/- per Kanal. It was averred that possession had been delivered to the plaintiff-company; however, the defendants had failed and refused to have the mutation attested in its favour, thereby rendering the revenue entries ineffective upon its asserted rights.

13.It is of material significance that, at the time of institution of Civil Suit No. 32/1-A, no mutation had been attested in favour of the defendants therein. Rather, the suit property continued to be recorded in the revenue record in the name of “Sarkar Daulat Madar.” Notwithstanding this position, and for reasons best known

to the plaintiff of Suit No. 32/1-A, “Sarkar Daulat Madar” was not impleaded as a party to the proceedings. The omission appears to have been premised upon the decree dated 06.03.1975 passed in favour of the proprietary body in Civil Suit No. 381/1, though the said decree was already sub judice before the appellate Court. It is an admitted position that, at the time of filing of Civil Suit No. 32/1- A, Civil Appeal No. 133/13 arising out of Civil Suit No. 381/1 was pending adjudication. The defendants in Suit No. 32/1-A were respondents in the said appeal, in whose favour the trial Court had passed the decree dated 06.03.1975, and who had allegedly transferred a substantial portion of the disputed property in favour of M/s Model Town Corporation Ltd., the plaintiff in Suit No. 32/1-A. In this backdrop, Dr. Iftikhar Ahmad son of (late) K.S.M. Younis Khan filed an application seeking his impleadment in Civil Appeal No. 133/13, asserting that he was owner in possession of Khasra No. 5092 measuring 46 Kanals and 05 Marlas situated in Tukra No.1, Village Tehkal Bala, Tehsil and District Peshawar, and, therefore, a necessary party to the appeal to safeguard his proprietary interests. During the pendency of the appeal, a separate application for impleadment was also moved by M/s Model Town Corporation Ltd., through its Chairman. Paragraph No. 2 of the said application assumes particular significance for determining the legal status and locus standi of the applicant in Civil Appeal No. 133/13, and reads as follows:– “That the petitioner/company has become the owner of 2943 Kanal 14 marla out of entire suit land under a compromise decree dated 02.04.1977 passed by Civil Judge 1st class, Peshawar and as such has an interest in the suit property and would be affected by the decision of aforementioned appeal pending in this court.”

14.During the pendency of the appeal, M/S Model Town Corporation, through its Chairman Mr. Abdul Rehman Qaiser, was proceeded against ex parte. Subsequently, an application was moved for setting aside the ex parte proceedings. The appeal was adjudicated by the learned Additional District Judge-III, Peshawar. The learned Appellate Court, upon appraisal of the evidence, particularly Ex.PW-1/1 to Ex.PW-1/6—being extracts from the Jamabandi for the years 1911–12 to 1972, observed that the suit

property consistently remained recorded in the name of Sarkar Daulat Madar and that possession thereof was reflected in favour of the appellants. It was further held that the appellants had remained in physical possession of the property, whereas the plaintiffs in Suit No. 381/1 failed to substantiate their claim or rebut the longstanding entries in the revenue record. Consequently, the appeal was accepted and the judgment and decree passed in Suit No. 381/1 were set aside vide judgment dated 20.06.1984. It is pertinent to note that the defendants in Suit No. 32/1-A had earlier been declared owners of the property vide judgment dated 06.03.1975. However, that judgment stood reversed upon acceptance of Appeal No. 133/13 on 20.06.1984. Although, at the time of institution of Suit No. 32/1-A, Appeal No. 133/13 was admittedly pending adjudication, neither the plaintiffs (M/S Model Town) nor the defendants—against whom the said appeal was pending—apprised the learned trial Court of the pendency of the said civil appeal. The transfer of the suit property in favour of M/S Model Town was thus inherently subject to the final determination of the rights of the defendants of Suit No. 32/1-A (who were plaintiffs in Suit No. 381/1) in Appeal No. 133/13. In other words, the fate of Suit No. 32/1-A was directly contingent upon the outcome of Appeal No. 133/13. It was incumbent upon the defendants of Suit No. 32/1-A to disclose this material fact before the learned Civil Judge, as non-disclosure of pending litigation affecting title amounts to concealment of a material circumstance. It is an admitted position that Suit No. 32/1-A was instituted on 18.02.1977 and decreed on 12.04.1977—within less than two months of its filing—despite the fact that the proprietary rights of the defendants therein had not attained finality and were sub judice before the appellate forum in Appeal No. 133/13. The pivotal question that arises for determination is whether the defendants in Suit No. 32/1-A were legally competent to alienate the suit property in favour of M/S Model Town. It is a settled principle of law that no person can transfer a better title than he himself possesses (nemo dat quod non habet). Therefore, if the defendants in Suit No. 32/1-A were not the lawful owners, they could not confer valid ownership rights upon M/S Model Town. In this regard, reliance is

placed upon Itbar Shah and others vs. Ahmad Shah and others (2001 CLC 1021) and Abdul Hameed through legal heirs and others Vs. Shamssuddin and others (PLD 2008 SC 140), wherein it has been unequivocally held that a transferee cannot acquire a better title than that of his transferor. Furthermore, this Court, in Syed Azhar Hussain Shah Vs. Member Board of Revenue, Khyber Pakhtunkhwa and others (2016 YLR 1849), has observed that “It is by now established that vendor cannot transfer a better title than that he possesses at the time of transfer. Mere fact that mutation has been attested in favour of some of co-sharers would not extinguish title of other co-sharers. Section 42 of the Land Revenue Act, 1967 provides the mechanism for transfer of rights in periodical records. The word "purchase" used in subsection (1) of section 42 would oust the attestation of mutation in exclusive Hissadari mutation in possession.

Ownership has been defined by "Salmond on jurisprudence" that it is relationship between a person and any right that may be vested in him. According to Austin "ownership" is a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration. Holland defines ownership "as a plenary control over an object." According to him ownership is exercise in its primacy and fullest sense over physical objects only.”

15.Before adverting to the remaining aspects of the matter, it is pertinent to observe that this Court, vide order dated 12.08.2024, formulated certain points for determination and directed the learned counsel for the parties to render assistance thereon.: i. Whether the consent decree dated 02.04.1977 passed by the learned trial Court in favour of the respondent M/S Model Town in civil suit No. 32/1A instituted on 18.02.1977, was set aside vide judgment/ order dated 28.05.1985 on the application filed by the other defendants, who had been proceeded exparte?

ii. Whether civil revision petition No. 38 of 1991 was filed against the order dated 25.02.1989, passed by the learned civil Judge, and order dated 11.10.1990 of the learned District Judge, Peshawar, whereby and whereunder the application filed by M/S Town (now respondent) under Order XXIII Rule 1 read with Rule 3 and Section 151 CPC was dismissed?

iii. Whether the petitioner/Government of Pakistan was defendant in suit No. 32/1A brought by the respondent/ MS Model Town?

iv. Whether the Government of Pakistan was a respondent in CR No. 38 of 19912 v. Whether the consent decree was passed on 18.12.1994 against defendants No. 1 to 538 by this Court in civil revision petition No. 38 of 1991 or by the learned trial Court in civil suit No. 32/1A?

vi. Whether the fact that the consent decree passed in favour of the respondent/MS Model Town has already been set aside by the learned Civil Judge vide judgment/order dated 28.05.1985, was brought into the notice of this Court during arguments in CR No. 38 of 1991?

vii. Whether the impugned judgment dated 18.12.1994 rendered in CR No. 38 of 1991 was obtained by misrepresenting the facts before this Court and practicing fraud?

viii. Whether the defendants No. 1 to 538 who consented to the judgment and decree dated 18.12.1994 passed in CR No. 38 of 1991 were owners in possession of the suit property when the above-referred judgment was passed in favour of M/S Model Town?

ix. Whether the title or claim of the defendants No. 1 to 538 in civil suit No. 32/1A had been extinguished in view of the judgment of the learned appeal Court in civil appeal No. 153/13 of 1975, passed in favour of the Government of Pakistan?

x. Whether the above-referred fact was brought into the notice of this Court while arguing the case in CR No. 38 of 1991? xi. Whether the ownership and possession of the Federal Government has been restored in view of the judgment delivered by the learned appeal Court?

xii. Whether mutation No. 2369 executed on 17.04.1975 was nullified in view of the judgment of the learned appeal Court, passed in favour of the Federal Government?

xiii. Whether the government of Pakistan was arrayed as respondent in COC No. 44 of 2007?

xiv. Whether the judgment and decree dated 18.12.1994 rendered in CR No. 38 of 1991 was executable in COC No.

44 of 2007 and the impugned order could have been passed in said COC?

xv. Whether the respondent was not in the knowledge of the earlier judgment passed by the appeal Court in favour of the Federal Government, particularly, when he was arrayed as respondent on his own request or not?

xvi. Whether the Federal Government is bound by the judgment and decree passed against the persons who consented to the decree or not, particularly, when the Federal Government was not the judgment debtor?

Points No. (i) & (ii):

The record reveals that after the decree in Suit No. 32/1-A was passed, certain defendants filed applications for setting aside the ex parte decree. Their applications were allowed to the extent of their interest, and the case was fixed for submission of written statements. In the interregnum, however, the plaintiffs of Suit No. 32/1-A moved an application seeking abandonment of the suit to the extent of those defendants whose ex parte decree had been set aside. The said application was dismissed. An appeal against that order also failed on 11.10.1990. Subsequently, Civil Revision No. 38 of 1991 was filed and was allowed by this Court with the observation that the suit of the plaintiffs shall be deemed dismissed to the extent of those defendants whose applications for setting aside the ex parte decree had been accepted. Civil Revision No. 38 of 1991 was finally disposed of on 18.12.1994. It is noteworthy that Civil Revision No. 38 of 1991 was not filed by the original plaintiffs of the suit; rather, it was instituted by M/S Model Town Corporation Limited, the beneficiary of the decree in Suit No. 32/1-A. An intriguing aspect of the matter is that, subsequent to the decree, one Dr. Iftikhar purchased a portion of the property, despite not being a party to the suit. When Civil Revision No. 38 of 1991 was filed, both M/S Model Town and Dr. Iftikhar—neither of whom were original parties to the proceedings in the relevant context, sought modification of the decree to the extent of dismissal of the suit against certain defendants whose applications had been allowed. More significantly, Civil Revision No. 38 of 1991 was allowed on 18.12.1994 for modification of the decree dated 02.04.1977. However, by that time the decree itself was no longer subsisting, as

the appeal against the judgment and decree had already been accepted on 20.06.1984. In such circumstances, there remained no decree in the field capable of modification. Notably, both M/S Model Town and Dr. Iftikhar were parties to the appeal decided on 20.06.1984 and were fully aware that the earlier judgment and decree had been set aside. The filing of Civil Revision No. 38 of 1991, without disclosure of this material fact, amounts to concealment and renders the order dated 18.12.1994 vulnerable, having been obtained on misrepresentation of facts. These points are decided accordingly.

Points No. (iii) & (iv):

It is an admitted position that the Government of Pakistan was not arrayed as a party in Suit No. 32/1-A, despite the fact that the revenue entries stood in its favour and that the judgment and decree in Suit No. 381/1, forming the basis of title, was under challenge in appeal. The proprietary rights claimed by the decree-holders in Suit No. 381/1 were subject to adjudication by the appellate Court. These material facts were not disclosed by the plaintiffs in Suit No. 32/1-A, and the suit was decreed within an unusually short span of less than two months. Furthermore, the Government of Pakistan was also not impleaded as a party in Civil Revision No. 38 of 1991. These points are answered accordingly.

Points No. (v), (vi) & (vii):

Civil Revision No. 38 of 1991 was ostensibly filed against the order of the learned Civil Judge dismissing the application for abandonment of the suit against those defendants whose ex parte decree had been set aside. However, while pursuing the revision, the material fact that the decree in Suit No. 381/1 had already been set aside in appeal was deliberately concealed. The setting aside of the decree in Suit No. 381/1 rendered the very foundation of the decree in Suit No. 32/1-A non-existent in the eye of law. The order dated 18.12.1994 passed in Civil Revision No. 38 of 1991 appears to have been procured without impleading the Government of Pakistan and without disclosure of the true and complete factual matrix. Had these material facts been brought to the notice of the

Court, the order could not have been passed in the manner it was. Accordingly, these points are decided in the above terms.

Points No. (viii), (ix), (x) & (xi):

Admittedly, defendants No. 1 to 538 were the plaintiffs in Suit No. 381/1, wherein a decree had initially been granted in their favour. However, an appeal against that decree was pending, and the judgment of the trial Court was subject to the final outcome of the appellate proceedings. The decree, therefore, was contingent upon the dismissal of the appeal. Before the appeal was decided, M/S Model Town instituted Suit No. 32/1-A against defendants No. 1 to 538 on the basis of alleged sale transactions. The said defendants consented to a decree in favour of M/S Model Town. However, the validity of that decree was inherently dependent upon the sustainability of the decree in Suit No. 381/1. Once the appeal (No. 133/13) was allowed and the decree in Suit No. 381/1 was set aside, the very substratum of the decree in Suit No. 32/1-A collapsed. In consequence, defendants No. 1 to 538 were left with no lawful title. Having no subsisting ownership rights, they were incompetent to alienate the property or confer any valid title upon M/S Model Town. Upon reversal of the trial Court’s judgment in appeal, the title of the Government stood restored. These points are decided in favour of the petitioners.

Points No. (xii), (xiii), (xiv), (xv) & (xvi):

Undoubtedly, the decree in Suit No. 381/1 had resulted in the attestation of Mutation No. 2369 dated 17.04.1975. However, upon acceptance of the appeal and setting aside of the decree, the very basis of the mutation ceased to exist. Consequently, the title of the defendants—and by extension that of the decree-holder in Suit No. 32/1-A—stood extinguished. It is also significant that the appellate judgment remained intact, having not been disturbed by this Court or by the Hon’ble Supreme Court. The claim of title set up by M/S Model Town was always subject to the final outcome of Appeal No. 133/13, which was ultimately decided against them. M/S Model Town had actively contested the appeal, and subsequent Civil Revision and CPLA proceedings were also

decided against it. Resultantly, no lawful title ever passed to the decree-holder through Mutation No. 2369 once the foundational decree in Suit No. 381/1 was reversed. All these points are, therefore, decided against the decree-holder and their vendors, i.e., the beneficiaries of the decree in Suit No. 381/1.

16.Since the respondents M/S Model Town were apprehending adverse order in appeal hence, they submitted an application for its impleadment as respondent in Civil Appeal No.133/13 and admittedly his application was allowed but it is indisputable fact that the appeal was allowed and Suit No.381/1 was dismissed. The dismissal of Suit No.381/1 had vanished the rights of defendants of Suit No.32/1-A if any, as such, Arbab Noor Muhammad filed Civil Revision No.365/1984 wherein, M/S Model Town was at serial No.IV in the array of petitioners, however, the joint civil revision of Arbab Noor Muhammad Khan (plaintiffs of Suit No.381/1 and M/S Model Town plaintiffs of Suit No.32/1-A) was dismissed for non-prosecution on 10.12.1986. It is worth mentioning that in Suit No.32/1-A within the period of two months, M/S Model Town and the defendants entered into a compromise based on which, the suit was decreed against whom, the allegations of the petitioners are that they have through their collusion misrepresented the facts and succeeded in getting a decree, which is obvious from the memorandum of C.R No.365/1984 as they were sailing in the same boat, filed joint civil revision but it was dismissed for non-prosecution. They have filed an application for restoration of C.R No.365/1984 but this was dismissed being time barred on 28.01.1987. Judgement and order of this Court in Civil Miscellaneous No.15/1987 in C.R No.365/1984 was questioned before the Hon’ble Supreme Court through Civil Petition for Leave to Appeal No.68-P/1987, which was dismissed on 02.12.1990 and leave was refused. Suit No.32/1-A filed by M/S Model Town against the defendants in whose favour, the decree was passed in Suit No.381/1 though succeeded in getting the decree on 02.04.1977 but when the appeal thereagainst was pending adjudication and was allowed on 20.06.1984. The respondents (plaintiffs of Suit No.32/1-A) were deriving their title from plaintiffs of Suit No.381/1, which decree was no more in field being

conditional to the final decision of Suit No.381/1. The question before this Court as to whether the plaintiffs of Suit No.32/1-A could claim any title against their defendants or against the present petitioners? The entire superstructure of Suit No.32/1-A form its inception to decree was hinges upon the fate of Suit No.381/1 and unless the decree sustains in favour of present petitioners unless the decree is set aside, M/S Model Town stands nowhere, having no locus standi. No sooner did the appeal allowed, decree in Suit No.32/1-A has fallen on ground. After acceptance of Appeal No.133/13, there exist no rights in favour of defendants of Suit No.32/1-A and the plaintiffs (M/S Model Town).

17.It is an admitted position that until the filing of the application under Section 12(2) of the Code of Civil Procedure, 1908 (CPC) by the present petitioners, the judgment and decree passed in Suit No. 32/1-A had not been directly assailed. However, it is equally significant that the acceptance of Appeal No. 133/13 resulted in the dismissal of Suit No. 381/1, and the said appellate judgment attained finality up to the august Supreme Court of Pakistan, where leave to appeal was declined. Importantly, M/S Model Town was a party to Civil Appeal No. 133/13. Although M/S Model Town was not a party to Suit No. 381/1, it was impleaded in Appeal No. 133/13 on its own application, specifically asserting that unless impleaded, its rights would be adversely affected. Ultimately, when the appeal preferred by the present petitioners was allowed, the decree in Suit No. 381/1 stood set aside, thereby extinguishing the very foundation upon which the claim of M/S Model Town rested. The petitioners were recorded owners in the revenue record and were beneficiaries of the decree in Suit No. 381/1. Once the appeal against that decree was allowed, the decree in Suit No. 381/1 ceased to exist in the eye of law. Consequently, the decree-holders in Suit No. 32/1-A could not legitimately claim title on the strength of a decree that was itself contingent upon and derivative of the decree in Suit No. 381/1. When the foundational decree was reversed, M/S Model Town was left without any legal substratum to sustain its claim. Reference may be made to the cases of Muhammad Hayat versus Settlement Commissioner (Land), Lahore and 9 others (2001 CLC 1537),

Vice-Chancellor Agriculture University, Peshawar and others Versus Muhammad Shafiq and others (2024 SCMR 527), Superintendent of Police, Headquarters, Lahore and others Versus Ijaz Aslam and others (2024 SCMR 1831), Moulana Atta-Ur- Rehman Versus Al-Hajj Sardar Umar Farooq and others (PLD 2008 SC 663) & Justice Qazi Faez Isa and others Versus President of Pakistan and others (PLD 2022 SC 119). Thus, the cause of action for filing an application under Section 12(2) CPC accrued when M/S Model Town continued to assert rights on the basis of a decree that no longer had legal efficacy.

18.The only lawful recourse available to challenge such a judgment and decree was either by invoking Section 12(2) CPC or by seeking relief under the inherent powers of the Court under Section 151 CPC. Accordingly, the petitioners approached the learned trial Court through applications under Section 12(2) CPC, which have been clubbed with the instant petition, seeking rectification of the anomaly arising from the decree in Suit No. 32/1-A, which was wholly dependent upon the decree in Suit No. 381/1 that had been set aside with finality. When confronted with the question as to how M/S Model Town could assert title after the decree in favour of its vendors (plaintiffs of Suit No. 381/1 and defendants in Suit No. 32/1-A) had been reversed, learned counsel for the respondents contended that since the decree in Suit No. 32/1-A had not been independently set aside, it continued to hold the field. Reference was also made to the judgment of the Hon’ble Supreme Court whereby an earlier judgment of this Court was set aside and the matter remanded for fresh adjudication. I have examined the relevant provisions of the Code of Civil Procedure, 1908, both substantive and procedural, in juxtaposition with the applications filed by the petitioners. The controversy essentially pertains to the fate of the decree in Suit No. 32/1-A, which was contingent upon a decree that has since been nullified and whose reversal has attained finality. This Court is vested with revisional jurisdiction under Section 115 CPC in two distinct capacities: first, upon invocation by an aggrieved party, which is subject to the limitation of ninety days as provided in the second proviso to

Section 115(1); and second, in the exercise of suo motu revisional powers, which are supervisory and not circumscribed by any prescribed limitation period. The scope of such powers has been elaborately discussed by the Hon’ble Supreme Court of Pakistan in Province of Punjab through District Officer, Revenue, Rawalpindi and others v. Muhammad Sarwar (2014 SCMR 1358), wherein it was held that Section 115(1) CPC confers two distinct jurisdictions: one exercised upon an application by an aggrieved party and the other exercised suo motu by the Court. The limitation of ninety days applies only to revisions filed by an aggrieved party and does not fetter the Court’s inherent supervisory jurisdiction to rectify jurisdictional errors or material irregularities committed by subordinate Courts. The apex Court further reiterated that where the revisional jurisdiction is invoked by a party, the statutory limitation must be strictly adhered to; however, when the Court itself acts to correct a manifest illegality or jurisdictional defect, such power is not constrained by limitation. In the present case, where the decree in Suit No. 32/1-A is demonstrably contingent upon a decree that has been set aside with finality, and where material facts were not brought to the notice of the Court at the relevant time, this Court is competent—either upon application under Section 12(2) CPC or in exercise of its revisional and supervisory jurisdiction—to examine the legality and sustainability of the impugned decree.

19.Once this Court arrives at the conclusion that the decree passed in Suit No. 32/1-A was wholly founded upon the ultimate outcome of Civil Suit No. 381/1—and that the said foundational decree is no longer in the field—the legal position becomes self- evident. Notwithstanding the fact that the decree in Suit No. 32/1- A was not independently challenged at an earlier stage, the foregoing discussion prima facie discloses elements of fraud, concealment, and misrepresentation of material facts which go to the very root of the matter. In such circumstances, there exists no legal impediment or procedural bar to the acceptance and adjudication of the present and connected applications. It is a settled principle that where a decree is alleged to have been procured through fraud or suppression of material facts, the Court

is empowered to examine the matter in order to prevent abuse of the process of law. It is equally well established that framing of issues and recording of evidence is not a sine qua non in every case, particularly where the material available on record is sufficient to determine the controversy or where the impugned decree is demonstrably void or without lawful foundation. The Hon’ble Supreme Court of Pakistan, in Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased) through legal heirs and others (PLD 2024 SC 262), Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296), Mst. Sabiran Bibi and others v. Ahmad Khan and others (2008 SCMR 226), Ghulam Muhammad v. Ahmed Khan (1993 SCMR 662), and Warrich Zarai Corporation v. F.M.C. Limited (Pvt.) Ltd. (2006 SCMR 531), has held that where a judgment or decree is ex facie void, coram non judice, or the result of fraud, the Court is not invariably bound to undertake a full-fledged trial if the illegality is apparent on the face of the record. Accordingly, in view of the fact that the decree in Suit No. 32/1-A was derivative of and contingent upon a decree that has since been set aside with finality, and given the prima facie indications of concealment and misrepresentation, this Court finds no legal bar in entertaining and deciding the present and connected applications in accordance with law.

20.Although the findings recorded by the Courts below are concurrent to the extent relevant to the present petition, it is a well- settled proposition of law that concurrent findings are not immune from interference in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908, where it is shown that the subordinate Courts have proceeded on an erroneous legal premise, have misread or failed to read material evidence, or have exercised jurisdiction in a manner not vested in them by law. In such circumstances, the revisional Court is competent to correct the jurisdictional defect or material irregularity. In this regard, reliance is placed upon Nazim-ud-Din and others v. Sh. Zia-ul-Qamar and others (2016 SCMR 24) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373), wherein the Hon’ble Supreme Court of Pakistan has held that concurrent findings may be interfered with if they suffer from misreading, non-reading of

evidence, or patent illegality affecting the exercise of jurisdiction. Applying the above principle to the case in hand, it is evident, particularly in light of the findings recorded on Points No. (xiv), (xv) and (xvi), that at the time of filing Civil Revision No. 38 of 1991, neither the judgment in Suit No. 381/1 was in the field nor was the decree in Suit No. 32/1-A legally intact, as its very foundation had already been set aside in appeal. Despite this, the parties to Civil Revision No. 38 of 1991 actively concealed material facts and misrepresented the true legal position, resulting in the passing of the order dated 18.12.1994. Such concealment and misrepresentation strike at the root of the proceedings and render the resultant order unsustainable in law. Consequently, this revision petition is allowed. Connected applications, i.e., CM 12(2) No. 16/2011 titled Government of Pakistan, Secretary, Ministry of Defence, Islamabad through Military Estate Officer, Peshawar v. M/S Model Town Corporation Ltd., through its Chairman Abdul Rehman and CM 12(2) No. 03/2012 titled Secretary to Government of Pakistan, Ministry of Defence through Military Estate Officer, Peshawar v. M/S Model Town Corporation Ltd., through its Chairman Abdul Rehman, are hereby allowed. As a necessary corollary, COC No. 449-P/2022 arising out of COC No. 44/2007 in C.R. No. 38/1991 titled M/S Model Town Corporation Ltd., through its Director Shakeel Hassan Qaiser v. Mr. Safiullah Khan, Deputy Commissioner, Peshawar & others stands dismissed.

21.It is a settled principle of law that, ordinarily, upon the acceptance of an application under Section 12(2) of the Code of Civil Procedure, 1908, the impugned judgment, decree or order is set aside and the lis is restored to its original position, resulting in revival of the suit or appeal for decision on merits. However, this general rule is not without exception. Where the very institution of the suit, culminating in the impugned judgment, decree or order, was inherently defective, collusive, devoid of lawful cause of action, or otherwise not maintainable in the eyes of law, the Court, while allowing the application under Section 12(2) CPC, is not bound to order revival of such proceedings. In such circumstances, revival would amount to perpetuating an abuse of the process of Court.

Instead, the suit may be dismissed outright upon acceptance of the application, as the foundational defect strikes at the root of the jurisdiction and maintainability of the proceedings. In the case at hand, the institution of Suit No. 32/1-A was manifestly collusive and inherently defective, particularly in view of the fact that the appeal arising out of Suit No. 38/1 had already been allowed and the said suit stood dismissed. Consequently, the subsequent suit lacked lawful substratum and independent cause of action. Therefore, the dismissal of the suit upon acceptance of the application under Section 12(2) CPC constitutes a legally sustainable exception to the general rule of revival of proceedings.

22.For the foregoing reasons and in view of the detailed discussion made hereinabove, all the above-captioned petitions are disposed of in the terms set out above. There shall, however, be no order as to costs.

Announced on 12.01.2026.

Released on 13.02.2026.

J UD G E

Haider Shah, SSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.