Mst. Nayab Akbar etc, Vs Mst. Shamim Begum, etc.

IN THE PESHAWAR HIGH COURT,

BAIINU BENCH

(Judicial Department)

WP No.l280-B/2019

Mst. Nayab Akbar, etc.

Vs Mst. Shamim Begum, etc.

JUDGMENT

Date of hearing: t2.03.2026

For petitioner(s): Mr. U mer Farooq Advocate

Forrespondent(s): ![4(Despiteservice) ******i<

MUHAMMAD TARIO AFRIDI J.- Through the instant petition, the petitioners have called in question the legality and -/\ validity of the judgment and order dated 10.10.201 9 passed by the f leamed Additional District Judge-I, Lakki Marwat, whereby Civil Revision No.53 of 2019, filed by respondent Mst. Shamim Begum and her two sisters, was accepted. Through the said order, the learned revisional court set aside the judgment dated 10'09'2018 passed by the leamed Civil Judge-V, Lakki Marwat' whereby Petition No. /1 1(2) CPC of 2016 frled by respondents Mst' Shamim Begum and others was dismissed without framing issues and without recording the evidence of the parties' Consequently, the revisional court remanded the matter to the trial court with directions to record the evidence of the pirties and thereafter decide the same strictly in accordance with law'

2.Brief facts ofthe case are that on 07.05'1984, respondent No. 13, Mr. Abdur Rashid, instituted Petition No' 258ll under the Arbitration Act, 1940, before the learned Senior Civil Judge, Bannu, against his father Sahib Jan (defendant No'l)' his two (Ghafoor Zaman) (S.B.) I{on'ble Mr. Justice Muham mad Tariq AAidi

uncles (defendants No.2 and 3), his flrve brothers (defendants No.4 to 8) and others, including the respondents Mst. Shamim Begum, Naseem Begum, Tasleem Begum, being the legal representatives of Sarwar Jan Khan, seeking to make the award of the arbitrators dated 24.04.1984 a Rule of the Court. The said petition was accepted by the trial court on 30.05.1984 in light of the joint statements of the parties, and the award was accordingly made a Rule of the Court.

3.Subsequently, the respondents namely respondent No.l Mst. Shamim Begum, respondent No.8 Naseem Begum, and respondent No.12 Tasleem Begum, on 14.06.2014, flrled Petition No. 5/12(2) under Section l2(2) CPC before the leamed Senior Civil Judge, Bannu, seeking cancellation of the decree dated 30.05.1984. The present petitioners, being the successors of Muhammad Akbar Khan, son of Ghulam Jan (defendant No.2), filed an application for dismissal ofthe said petition on the ground that it was not maintainable for want of territorial jurisdiction, as the property in dispute is situated within the territorial jurisdiction of Lakki Marwat, where the parties also reside. It was further contended that Lakki Marwat was notified as a separate diskict in 1993, therefore, the leamed Senior Civil Judge, Bannu had ceased to exercise jurisdiction in the matter. Consequently, vide order dated 28.01.2015, the leamed court retumed the said petition under Order VII Rule 10 CPC with directions to present the same before a court of competent territorial jurisdiction.

4.Feeling aggrieved by the order dated28.01.2015, passed by the leamed Senior Civil Judge, Bannu, the respondents Mst. Shamim Begum and her two sisters filed a civil revision before the leamed District Judge, Bannu ot 17.02.2015. The said revision petition was entrusted to the learned Additional District Judge-III, Bannu, who dismissed the same vide order dated (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

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08.03.2016, whereby the order of the learned Senior Civil Judge, Bannu dated 28.01.2015 was upheld.

5.Thereafter, on 13.04.2016, the respondents Mst. Shamim Begum and her two sisters filed Petition No. 4/12(2) under Section l2(2) CPC before the leamed Senior Civil Judge, Lakki Marwat, which was entrusted to the learned Civil Judge-V, Lakki Marwat for disposal. The leamed Civil Judge-V, Lakki Marwat, vide order dated 10.09.2018, dismissed the said petition with costs amounting to Rs.5000/-.

6.The respondents, namely Mst. Shamim Begum and her two sisters, being dissatisfied with the order dated 10.09.2018 passed by the leamed Trial Court, preferred Civil Revision Petition No.53 of 2019, before the leamed District Judge, Lakki Marwat. The said revision petition was entnrsted to the leamed Additional District Judge-I, Lakki Marwat, who, vide order dated 10.10.2019, allowed the revision petition and remanded the matter to the leamed Trial Court with directions to decide the petition filed under Section l2(2) CPC afresh after recording the evidence of the parties and strictly in accordance with law.

7.Feeling aggrieved of the said order dated 10.10.2019' passed by the leamed Additional District Judge-I, Lakki Marwat, and having no other adequate or efficacious remedy available under the law, the petitioners have invoked the constitutional jurisdiction ofthis Court through the instant writ petition, seeking reversal of the impugned order and restoration of the order dated 10.09.2018 passed by the leamed Senior Civil Judge, Lakki Marwat.

8.It is pertinent to note that despite proper service, the respondents did not tum up. Therefore, arguments of leamed counsel for the petitioners were heard and the record was perused.

(Ghafoor Zamaa) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

g. Leamed counsel for the petitioners contended that the respondents were duly summoned and served, and they appeared before the Court through their brother, Shaukat Ullah, who acted as their duly constituted attomey; that these facts clearly demonstrate that no fraud or misrepresentation' was committed in making the arbitral award a Rule of the Court by the leamed Senior Civil Judge, Bannu. He further argued that the petition under Section l2(2) CPC, hled on 13.06.2014 against the order dated 30.05.1984, was instituted after an inordinate delay of about 30 years, and was, therefore, hopelessly baned by limitation' Lastly, he contended that the impugned order passed by the leamed Revisional Court is neither a speaking order nor supported by sound reasoning, and thus lacks legal justification and persuasive value.

ry 10. Legally speaking, the law of limitation bars the remedy once the prescribed period for initiating legal proceedings has expired, as the Court is divested of the authority to grant relief in respect of a time-barred claim. Therefore, it is considered appropriate to first address the objection regarding limitation'

11.Under the provisions of the Limitation Act, 1908' no specific period of limitation has been prescribed for filing an application under Section l2(2) CPC. Therefore, Article 181 of the Limitation Act, being the residuary provision' govems such proceedings. According to the said Article' an application for which no period of limitation is provided elsewhere in the First years Schedule of the Limitation Act may be filed within three from the date when the right to apply accrues'

12.The contention of the petitioners that the petition under Section l2(2) CPC, instituted on 13'06'2014 against the order dated 30.05.1984 after a lapse of nearly thirty years' was hopelessly barred by limitation, though apparently attractive' is

(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

neither convincing nor persuasive. In reply, the respondents, in paragraphs 6 arfi 7 of their petition under Section l2(2) CPC, specifically pleaded that they came to know about the alleged fraudulent decree only about one and a half months prior to the filing of the petition, when Abdul Rashid Khan, the decree-holder, purportedly started interfering with the properties owned and possessed by them. To substantiate the allegation of fraud, they asserted that, at the relevant time, they were residing with their respective husbands at their matrimonial homes in Peshawar; however, in the suit their incorrect addresses at Sarai Naurang, Lakki Marwat were mentioned. They categorically denied having been served with summons in the said proceedings and also refuted the execution of any power of attorney in favour of their brother, Shaukat Ullah Khan. Furthermore, they denied having given any consent to, or having participated in, the arbitral proceedings culminating in the award.

13.Since, in the present case, the respondents have specifically pleaded in their petition that they came to know of the impugned decree only one and a half months prior to hling the petition under Section 12(2) CPC, and that the same had been obtained through fraud and misrepresentation, the provisions of Section 18 of the Limitation Act are fully attracted. For the sake of convenience, the said provision is reproduced below:

18.Effect of fraud. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded,

or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application-

(a)against the person guilty of the fraud or accessory thereto, or

(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tar iq Afridi

(b)against any person claiming through him otherwise than in good faith and for a valuable consideration,

shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.

14.A combined reading of Section 18 and Article 181 of the Limitation Act, 1908, makes it clear that where fraud is alleged in a suit or application, the question of limitation becomes a mixed question of law and fact, which ordinarily cannot be determined without recording evidence. Consequently, the issue of limitation in such cases cannot be conclusively decided at the threshold and must be adjudicated after the parties are afforded an opportunity to lead evidence in support of their respective claims.

15.When the leamed counsel for the petitioners was asked as d to whether specific allegations of fraud and misrepresentation in obtaining the impugned judgment and decree, the question of knowledge thereof, the categorical denial of service of summons, the alleged misrepresentation through an attomey and the absence of consent, could be properly adjudicated without recording evidence of the parties, his reply was a "Big No".

16.Consequently, the order passed by the leamed Additional District Judge-I, Lakki Marwat, remanding the matter to the leamed trial Court for a fresh decision after recording evidence, is found to be in consonance with the law and the well-settled principles governing proceedings under Section l2(2) CPC- T\e impugned order does not suffer from any jurisdictional defect, illegality, or material irregularity that would justiff interference by this Court in the exercise of its constitutional jurisdiction' Accordingly, the instant writ petition, being devoid of merit, is hereby dismissed, and the impugned order passed by the learned revisional Court is maintained.

(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

5 is hereby dismissed nlbninie.

202s. 17. Since the controversy arose in the year 2014 and has yet to h PS' attain finality, the leamed trial court is directed to decide the matter expeditiously, preferably within four months from the date Abdalofa ofreceipt (S,B) Hon'ble Mi lastlcc certified copy ofthis order. Fayaz

Announced t2.03.2026 -Sd- a

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(Ghafoor Zaman) (S.8.) Hon'ble Mr. Justice M uhammad Tariq Afridi