Shams-ur-Rehman & others Vs Said Shah & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P No.1807-P/2019.

Shams-ur-Rehman & others Vs. Said Shah & others.

Date of hearing 02.02.2026.

Mr. Abdul Sattar Khan, Advocate, for the petitioners.

Mr. Gul Sadbar Khan, Advocate, for respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - Impugned through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the judgement/order of learned Additional District Judge, Charsadda at Tangi whereby, civil revision filed by petitioners against the order of learned Civil Judge- I, Tangi dismissing their application filed under Section 12(2) CPC, was dismissed.

2.Arguments heard, record perused.

3.A perusal of the record reveals that respondent No.1, Said Shah, instituted a suit for declaration and permanent injunction, asserting himself to be owner in possession of the house described in the head-note of the plaint, contending that respondents Nos.2 to 9 had no right or interest therein. The claim was founded upon sale transactions executed in his favour through registered deeds dated 23.09.1990 and 09.01.1998, upon payment of full sale consideration. It was pleaded that Saleh Khan was the original owner of the property, who had constructed the house and was residing therein along with defendants Nos.1 to 3. An agreement to sell was allegedly entered into with respondent No.1 for consideration of Rs.65,000/-, followed by execution of the sale deed dated 23.09.1990. Likewise, a vacant site was sold for Rs.600,000/- vide deed dated 01.09.1998, possession whereof was also delivered. After the sale, defendants Nos.1 to 3 allegedly continued to reside in the house as tenants on monthly rent of Rs.500/-, which they initially paid but later defaulted upon and denied the plaintiff’s title.

The defendants were proceeded ex-parte, and vide judgment dated 18.04.2009, the learned Civil Judge-II, Tangi decreed the suit in favour of respondent No.1. Defendant No.8, Mst. Amtul Hawa, subsequently filed an application for setting aside the ex-parte decree, which was allowed on 03.02.2010. However, the revision petition preferred by the plaintiff was allowed by the learned Additional District Judge, Charsadda at Tangi on 10.06.2010, whereby the ex-parte decree dated 18.04.2009 was restored. Consequently, execution proceedings were initiated. During execution, the present petitioners—who were admittedly not parties to the suit—filed objections on 06.12.2010, asserting that neither were they judgment-debtors nor was their property subject-matter of the decree, and therefore issuance of warrants of possession against their property was illegal, without lawful authority, and violative of their independent rights. The learned executing court, however, vide order dated 27.11.2012, dismissed the objections on the premise that since proceedings for setting aside the ex-parte decree had taken place, the objections were neither maintainable nor could be treated as an application under Section 12(2) CPC. This dismissal triggered a series of proceedings, including filing of an application under Section 12(2) CPC, civil revisions, remands, returns of applications on the question of forum, and dismissal on the supposed principle of merger—resulting in procedural entanglement spanning nearly fifteen years, without adjudication of the petitioners’ core grievance.

4.It is evident from the record that instead of addressing the real controversy, the courts below remained preoccupied with determining whether the petitioners’ grievance fell under Section 12(2) CPC, Section 47 CPC, or otherwise, thereby losing sight of the fact that the petitioners were third parties claiming independent possession, dispossessed during execution. Even when the learned Additional District Judge, vide order dated 16.01.2014, correctly observed that an application under Section 12(2) CPC was not competent before the District Court and was required to be filed before the court which passed the decree, the subsequent proceedings once again culminated in dismissal on technical

grounds, including the alleged principle of merger—an approach which was conceded by the learned counsel for the respondent to be legally unsustainable. It is an admitted position that:  the petitioners were not parties to the suit;  no decree was passed against them; and  their grievance arose solely from dispossession under the guise of execution.

Such a grievance squarely falls within the ambit of Order XXI Rules 99 and 100 CPC, which constitute a complete and self-contained statutory mechanism for adjudication of disputes relating to dispossession of third parties during execution of a decree. Rule 99 provides a remedy to a person who:

1.is not a judgment-debtor;

2.has been dispossessed of immovable property;

3.in execution of a decree;

4.by the decree-holder or auction-purchaser; and 5. claims an independent right, title, or interest therein.

Rule 100 mandates restoration of possession where the executing court, upon inquiry, is satisfied that such dispossession was unlawful. An order passed thereunder is deemed to be a decree, appealable under Section 96 CPC. Rule 101 further obligates the executing court to finally decide all questions of right, title, or interest, barring a separate suit. In the present case, no evidence was recorded on the objections, nor was any inquiry conducted as required by law. Instead, the objections were repeatedly dismissed on misconceived notions regarding maintainability of an application under Section 12(2) CPC, a provision which, from inception, was not attracted to the facts of the case. In view of the facts of the case the reliance of the respondents on the case law i.e., Sardaraz Khan v. Amirullah Khan (PLD 1995 Peshawar 86) and Mst. Khalida Begum v. Mst. Yasmeen (2000 CLC 1290) is misplaced, as those cases pertain to circumstances materially distinguishable from the present one. It is a settled principle that an act of the court shall prejudice no one. Reference may be made to Zulfiqar v. Shahdat Khan (PLD 2007 SC 582) wherein Hon’ble Supreme Court has held: It is well-settled principle of law that act of the Court or act of a public functionary on the actions of whom a citizen has no control should not be allowed to prejudice anyone.

Reference may also be made to the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472). Moreover, in the case of Messrs MOBISERVE Pakistan (PVT.) LIMITED V. Messrs V-TECH and others (2025 SCMR 1936) it was held that “It means an application under Section 12(2) C.P.C. is maintainable when the decree or order was obtained by deliberate deception or suppression of material facts from the Court7. However, the judgment8 supports a broader reading that includes fraud between the parties affecting the decree. For instance, if a plaintiff fabricates documents or misleads the court to secure a favorable judgment, the affected party can invoke Section 12(2) C.P.C.; when the decree results from unintentional but material misstatement of facts by a party, leading the court to pass an erroneous order. For example, if a party misrepresents the ownership of property in a suit, the aggrieved party may apply under this section; and when the court lacked inherent jurisdiction to pass the decree or order. For instance, if a court passes a decree in a matter outside its territorial or pecuniary jurisdiction, an application under Section 12(2) can be filed. Additionally, a person not a party to the suit but affected by the decree e.g., a third party whose property is wrongly included in a decree, may apply under this section.” It was also held in the ibid case that:

“For example, if a decree is challenged for fraud under Section 12(2) C.P.C., the Court may use Section 151 C.P.C. to stay execution proceedings pending the adjudication of the application. Further, provisions under Order XXI (e.g. Rules 2612, 2913, 9014, 99-101) govern the execution of decrees. If a decree is challenged under Section 12(2) C.P.C. for fraud or lack of jurisdiction, ancillary issues like staying execution (Order XXI Rule 26, C.P.C.) or setting aside a sale in execution due to fraud (Order XXI Rule 90, C.P.C.) may arise; if a property is sold in execution of a decree obtained by misrepresentation, the affected party may seek to set aside the sale under Order XXI Rule 90 C.P.C., in conjunction with an application under Section 12(2) C.P.C.; Section 9 C.P.C. establishes that civil courts have

jurisdiction to try all suits of a civil nature unless barred. When an application under Section 12(2) C.P.C. is filed alleging want of jurisdiction, Section 9 C.P.C.15 provides the foundational principle for determining whether the court had the authority to pass the decree.”

5.In view of the foregoing discussion, it is manifest that both the learned courts below failed to exercise jurisdiction vested in them by law and misdirected themselves by dismissing the petitioners’ objections without lawful inquiry, thereby committing a material illegality. Accordingly, this petition is allowed. The impugned orders passed by the learned Civil Judge-I, Tangi and the learned Additional District Judge, Charsadda at Tangi are hereby set aside. The matter is remanded to the learned executing court with directions to:

1.treat the objections as an application under Order XXI Rule 99

& 100 CPC;

2.record evidence of the parties;

3.if deemed necessary, appoint a Local Commissioner for spot inspection; and

4.determine, strictly in accordance with law, whether the petitioners were unlawfully dispossessed of property not covered by the decree, and if so, pass appropriate orders under Order XXI Rule

100 CPC.

In view of the prolonged litigation, there shall be no order as to costs. Learned Civil Judge-1 Charsadda at Tangi shall issue notice to the parties after receipt of the copy of this order for appearance and thereafter shall decide the case in accordance with law. Announced.

J UD G E

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