Law: Code Of Civil Procedure, 1908.

Section: 12(2), Order VII Rule 11, 2(2), 2(3), Order XXI Rule 10

Law: Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, (V of 1977)

Section: 3,2(j)

REMARKS

Application under section 12(2) CPC
Held: (i) The legal question emerges from the contents of the instant application and arguments advanced by the learned counsel, whether the order passed by this Court in Writ Petition No.4725-P/2021 dated 11.10.2022 is a decree ? and if the ibid order of this Court does not fall in the definition of a Decree, whether the order of this Court can be challenged through application under section 12(2) Civil Procedure Code, 1908? To answer these questions, the meaning and definition of the terms “Decree” and “Decree Holder” are of utmost importance, the Civil Procedure Code has already provided the definition of both these terms, the terms “Decree” and “Decree Holder” have been defined in section 2 (2) and 2 (3) of the Civil Procedure Code, 1908, respectively.
(ii) Decree has been defined as the formal expression of adjudication that conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit, as regards the Court expressing it, this is the actual definition of “decree” which has been given in the first part of the section, reproduced above. In the second part, certain orders that do not fulfill the definition of the decree have however been included in the definition of the decree through deeming clause therein, the decree actually connotes the conclusive determination of the rights of the “parties” with regard to all or any of the matter in controversy in the suit.
(iii) The word “parties” has been used rather than plaintiff(s) or the defendant(s). When the decree determines certain rights to which the defendant(s) is/are held entitled, then in such a case, the defendants would also be included in the definition of “decree holder”. The word “decree holder” cannot, therefore, be restrained to the persons who have stood on the panel of plaintiffs during proceedings of the case such a narrow interpretation would compel repetition of adjudication in Courts of law and parties would be litigating for declaration of such rights which are already settled and declared by the Court. In this fast-paced modern era, neither the Court nor the parties can indulge in the luxury of engaging in multiple rounds of litigations to establish or revise rights that have already been declared. When the Courts once declare some right after a due process and find it enforceable and such a decision gets finality then all the people entitled under such a decree would fall in the definition of “Decree holder” to file an application for execution under Order XXI Rule 10 CPC, regardless of the facts whether they stood on the panel of the plaintiffs or the panel of the defendants. Thus, the “Decree holder” would mean a person who is entitled to enforcement of a right under a decree.
(iv) According to section 12 (2) CPC, a party can file an application to set aside a final judgment, decree, or order if it was obtained through fraud, misrepresentation, or lack of jurisdiction essentially requiring the applicant to prove that the previous decision was flawed due to one of these factors and that they were significantly impacted by it, allowing them to challenge the decision without initiating a new lawsuit. The application must be based on allegations of fraud, misrepresentation of facts, or the Court lacking jurisdiction when the original decision was made. The application must be against a “Final decree” meaning there are no further appeals or remedies available against the original decision.
(v) It is held that it is well-settled exposition of law that for determining the grounds of alleged fraud, misrepresentation, or want of jurisdiction, if any raised in the application moved under section 12(2) CPC, the Court is not obligated in each and every case to frame issues mandatorily in order to record the evidence of parties and exactly stick to the procedure prescribed for decision in the suit but it always rests upon the satisfaction of the Court to structure its proceedings and obviously, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide whether the case is fit for framing of issues and recording of evidence, without which the allegations levelled in the application filed under section 12(2) CPC cannot be decided.
(vi) Answer to the above question is that this Court has not passed any decree, nor any final judgment in favour of respondents rather this Court remanded the case to the learned Tribunal for decision on merit. This Court decided the controversy regarding the notice under section 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, the allegation of having illegally occupied the Government Property by the respondents. The suit filed by the respondents before the Encroachment Tribunal was dismissed vide order dated 22.03.2021 on the ground that the respondent in the present application is merely a tenant in the said shop on payment of monthly rent and as such, he cannot maintain petition/suit before the Tribunal.