PLJ 1996 Karachi 676

PLJ 1996 Karachi 676

Present: rasheed A. razvi, J. Mst. FARIDA BEGUM and others-Plaintiffs

Versus

HAFIZ MUHAMMAD SHAMIM and others-Defendents

Suit No. 689 of 1993, dismissed on 28-3-1996.

(i) Civil Procedure Code, 1908 (Act V of 1908)--

—-S. 12 (2)-Allegation of fabricating documents and making false statements before authority for obtaining cancellation of lease—Suit for setting aside decree-Matter already heard by High Court and Supreme Court in two different appeals-Held : Sub-section (2) of Section 12 CPC provides that where any person challenges validity of a judgment, decree or order on pleas of fraud, misrepresentation or want of jurisdiction, such person shall seek his remedy by filing an application to court which has passed such final judgment, decree or order—This subsection clearly prohibits filing of a separate suit to challenge validity of a judgment, decree or order on ground of fraud misrepresentation or want of jurisdiction-Held further : Defendants had an opportunity to raise all these questions before this court in civil revision as well as before, supreme court which they have miserably failed and now they cannot be allowed to have resort to provisions of Section 12 (2) CPC for their own acts of negligence or omission-Petition dismissed.

[Pp.679&680]A&B

1992 CLC 2323 ; PLD 1984 Lah. 396,1988 CLC 2037 1991 CLC 553 PLD 1982 Pesh. 172, PLD 1982 SC 148, PLD 1983 SC 941,1981 SCMR 878, PLD

1991 SC 197 ref.

(ii) Civil Procedure Code, 1908 (Act V of 1908)-

—S. 12 (2) Suit for setting aside decree allegedly obtained by fraud and misrepresentation-Held : No doubt, in para 14 of plaint they have challenged certain acts of defendants to support allegations of fraud and misrepresentation but that this suit is not proper remedy of their grievances and that they should have filed an application under Section 12 (2) CPC before court which has passed final judgment-Suit is barred under sub-section 2 of Section 12 CPC and by virtue of Order 7 rule 11 (d) CPC plaint is liable to be rejected-Petition dismissed.

[P. 682] C

Mr. Sathi M, Ishaque, Advocate for Plaintiff.

Mr. Z. U. Ahmed, Advocate for Defendants 1 to 5.

Mr. Muhammad Yasin Kayani, Advocate for Defendant No. 6.

Date of decision 28-3-1996.

order

Through this order, I intend to dispose of three miscellaneous applications. The first application, CMA No. 1049/94, is filed by the plaintiffs under Order XXXK Rules 1 & 2 CPC praying that the defendant No. 6, namely K.M.C. be restrained from issuing any lease in favour of other defendants. CMA No. 2629/94 is an application filed by the defendants No. 1 to 5 under Order VII Rule 11 CPC praying that the plaint be rejected on the ground of res judicata as well as in view of section 12 (2) CPC. CMA No. 3294/94 is an application under section 148 CPC filed on behalf of the defendants praying that they may be allowed not to file their respective written statements till disposal of their application filed under Order VII Rule 11 CPC.

2. Brief facts, as disclosed in the plaint, are that the plaintiffs are legal heirs of late Imamuddin while defendants No. 1 to 5 are brother and sister of one Muhammad Naseem. The property in dispute is a land measuring 460 square yards bearing No. 4, Charcoal Area¹, Liaquatabad, Karachi (hereinafter referred to as the property in dispute). It is alleged in the plaint that the property in dispute was allotted to the predecessor-in- "Interest of the plaintiffs who are in physical possession. That in the year 1972, the defendant No. 6 namely, K.M.C. granted lease rights which was accordingly registered on 31.12.1972. That the predecessor-ia-interest of the defendants N(J. 1 and 2 also claimed ownership of the property in disputed on the grounds that he has acquired the same from the Deputy Refugee Commissioner, Karachi. It is admitted in the plaint that several civil and criminal litigations were initiated between the parties. The most important litigation was a suit bearing No. 227 of 1976 filed by Muhammad Naseem, predecessor-in-interest of the defendants No. 1 and 2 against Mst. Majeeda for cancellation of lease deed dated 23.12.1972. The Suit No. 227/76 was dismissed on 6th April, 1980 by the Vth Senior Civil Judge, Karachi against which the predecessor-in-interest of defendants No. 1 to 5 filed appeal bearing No. 232/80 (Annexure-A to the plaint) which came up for hearing before the Vnth Additional District Judge, Karachi who vide his judgment dated 13.1.1983 allowed the appeal and decreed the suit.

3. The case of the plaintiffs is that the defendants No. 1 to 5 had procured the judgment of learned Vllth Additional District Judge, Karachi in Appeal No. 232/80 by misrepresentation and by playing fraud upon the Court Several instances are alleged in para-14 by the plaintiffs to show that the misrepresentation and fraud were allegedly committed by the defendants No. 1 to 5. In view of these allegations, the plaintiffs have filed this suit for declaration and injunction with the following prayers :

"(a) Declaration that the predecessor-in-interest of Defendants No. 1 to 5 has obtained judgment in Appeal No. 232/83 from the then VE-Additional District Judge Karachi by fraud and mis-representations and, therefore, the said Judgment is without lawful authority and of no legal effect;

(b) Prohibit and restrain the Defendants No. 1 to 6 from interfering with the possession of Charcoal Commercial Area, Liaquatabad, Karachi, directly or indirectly themselves or through any other agency by any process and in any manner whatsoever."

4. It is pertinent to mention here that the plaintiffs after the order of the learned Vllth Additional District Judge, Karachi in Civil Appeal No. 232/80 preferred a Civil Revision before this Court which was numbered as R.A. No. 69/83. The learned Single Judge of this Court heard the revision and set aside the order of the learned Additional District Judge in Civil Appeal No. 232/80 and remanded the case vide its judgment dated 5-3-1989 to the learned District Judge Central to decide the matter in appeal afresh after hearing the arguments of all the parties. Against this order, defendants No. 1 to 5 went before the Supreme Court seeking leave to appeal through C.P.L.A. No. 518-K/89. The Hon'ble Supreme Court of Pakistan after following the law laid down in the case ofMussumot Hitoo v. Syed Fazal Rob
and others 13 (1870) Moors's Reports of Cases (Privy Council) 573 as well as the case Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97) converted leave petition into appeal and set aside he judgment dated 5.3.1989 and remanded the case to this Court for recording a reasoned order as required under the law. Accordingly, this Court re-heard R_A. No. 69/83 and vide its judgment dated 30.5.1991 again remanded the case to the Appellate Court for disposal in accordance with the law.

5. Against the order of this Court dated 30.5.1991 passed in RA. No. 69/83, the defendants No. 1 to 5 again approached the Hon'ble Supreme Court through leave petition and leave was granted vide order dated 26.11.1991. In appeal (250-K/91) vide its judgment dated 11.11.1992 a Full Bench of the Hon'ble Supreme Court was pleased to set aside the order of this Court in R.A. No. 69/83. Following is the relevant observation of the Supreme Court:

The crucial point on which the arguments from both sides were directed is; whether, a party having failed to object to the admission of a piece of evidence which otherwise may be objectionable but suffering from no substantial defect on merits can relying on technicalities succeed in the higher forums in seeking the annulment of the trial or for that matter the exclusion of such evidence. Obviously the recent judgments by this Court noticed above go against the respondents' position. Learned counsel far the appellant also brought to our notice that the procedure regarding admission of evidence objected to by the respondent's side was also adopted by the said side in leading their own evidence. Learned counsel for the respondents remained unable to contradict this statement on fact but tried again
and again that an illegality or even an irregularity committed at the trial in the admission of evidence whether that of the appellant or that of the respondents could not have been ignored by the High Court nor it can be ignored by this Court. We do not agree with such a general statement The trend of authority is against it In so far as the present case is concerned the learned counsel again was asked to explain the respondents' conduct is not only failing to raise any objection at the trial stage but had also followed the same procedure to which no objection was raised before the High Court Not only this when confronted with a very
strong probability that both the parties had agreed on such a procedure because none objected to the other departing from the normal practice, learned counsel for the respondents did not dispute this assumption though continued repeating the technical argument ."

6. I have heard Mr. Sathi M. Ishaque, Advocate for the plaintiffs, Mr. Z.U. Ahmed, Advocate for defendants No. 1 to 5 and Mr. Muhammad Yasin Kayani, Advocate for defendant No. 6. The main thrust of the argument of defendants, Counsel is the bar contained in Section 12 (2) CPC. According to Mr. Z.U. Ahmed, since the plaintiffs are seeking setting aside of the judgment passed by the first appellate Court, namely, Additional District Judge, Karachi on the grounds of fraud, misrepresentation and jurisdiction as such the suit is not maintainable in view of the bar contained in section 12 (2) CPC. He has referred to the case of Government ofSindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197) and the case of North-West Frontier Province Government, Peshawar and another v. Abdul Ghafoor Khan through Legal Heirs and others (PLD 1993 SC 418). On the other hand, it is contended by Mr. Sathi M. Ishaque that the plot on dispute is not the same plot which was allotted to the predecessor-in-interest of the plaintiffs and that the predecessor-in-interest of defendants No. 1 to 5 had fabricated the documents and made a false statement before the K.M.C. for obtaining cancellation of lease. He has referred to the case of Muhammad Ilyas v. Haftz Abdul Malik and 2 others (1991 CLC 1975).

7. Subsection (2) of section 12 CPC provides that where any person challenges the validity of a judgment decree or order on the plea of fraud, isrepresentation or want of jurisdiction, such person shall seek his remedy by filing an application to the Court which has passed such final judgment decree or order. This subsection clearly prohibits filing of a separate suit to challenge the validity of a judgment decree or order en the ground of fraud, misrepresentation or want of jurisdiction. The Hontile Supreme Court has held in the case of Government of Sindh and another (PLD 1991 SC 197) that the intention of the legislature in amending section 12 CPC by adding subsection (2) was to provide a substitute for such a suit against the judgment, decree or order obtained by fraud. In the instant case, the impugned judgment of the learned Vllth Additional District Judge was passed on 13.1.1983, thereafter the matter was twicely heard by this Court in Civil Revision No. 69 of 1983 and was also heard thrice before the Supreme Court in two different appeals. But on no occasions, the plaintiffs have never pointed out or alleged the same grounds as of the present plaint. Para-16 of the plaint which is about the accrual of cause of action is absolutely silent on the point that when these alleged frauds or misrepresentation were committed. In my view, the defendants had an opportunity to raise all these questions before this Court in civil revision as well as before the Supreme Court which they have miserably failed and now they cannot be allowed to have resort to the provisions of section 12 (2) CPC for their own acts of negligence or omission. Reference be made to the following para of the reported case viz., Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197):

"13. Further, as will appear from the above-quoted paragraph, the appellants did not plead any such facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under section 12(2), C.P.C. because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of section 12 (2), C.P.C. for their own acts of negligence or omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court This could not be intention of the legislature as the same would be against public policy."

In the case of Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878), it was held that after adjudication of dispute between the parties by a competent Court of law; fresh suit to re-agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law. In view of the said circumstances, order of the trial Court rejecting the plaint in the suit was restored and the order of the High Court was set aside. Even prior to the 1980 amendment in section 12, the Supreme Court has held that even under sections 9 and 11 of the CPC such suits are barred which are filed to challenge the legality and validity of judgments and orders passed on the grounds of fraud or misrepresentation. Reference be made to the case of Abdul Mqjid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146) where it was held that under section 44 of the Evidence Act (now repealed) permits a party to a decision, to show that it was obtained by other party by fraud or collusion or that the Court acted without competence. It was further held that this section does not lay down mandate that it must be shown in a separate suit and not by moving the same Court or the appellate authority. The rule laid down by the Supreme Court in the case of Abdul Majid (supra) was followed in the case ofAsifJah Siddiqui v. Government ofSindh and others (PLD 1983 SC 446).

8. Recently, a learned single Judge of Lahore High Court, Mr. Muhammad Hyas, J. (as his lordship then was) in the case of Sarwar and 3 others v. Muhammad Saeed-ud-Din Khan Alias Saadat-ud-Din Khan (1992 CLC 2323) held that since the petitioner's predecessor-in-interest had challenged the judgment and decree passed in favour of respondent on the ground of fraud and misrepresentation, it was barred by subsection (2) of section 12 of the CPC and that this could be done by making an application under section 12 (2) CPC and not by a separate suit The learned Judge has followed the rule laid down in the cases of Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others (PLD 1984 Lah. 396), Sardar Bakhsh v. Sahib Khatoon (1988 CLC 2037), Iqbal v. Mst. Jainan Bibi(lQ91 CLC 553) nd the case of Abdul Rauf and others v. Abdur Rahim Khan (PLD 1982 Peshawar 172). The facts of the reported case; Sarwar and 3 others (Supra) are similar to the facts of the present case. Even'this Court in the case of Mst Rukhsana Ansar and 2 others v. Mst. Raeesa Khatoon (1993 MLD 1319) held that by virtue of newly added subsection (2) suit cannot be instituted to challenge the validity of the judgment, decree or order by a Civil Court on the ground of fraud, misrepresentation or want of jurisdiction and that such remedy can now only be sought by an application to the Court which passed the final judgment, decree or order.

9. The case of Muhammad Ilyas vs. Hafiz Abdul Malik and 2 other cited by Mr. Sathi M. Lshaque is of no help to them as in the said reported case the impugned order was passed by a learned Rent Controller and it was held by a single Judge of this Court that the question of fraud as alleged was neither directly nor substantially in issue before the Rent Controller or before the High Court In the present case, the plaintiffs have alleged frauds which were allegedly committed by the defendants either before filing of the suit or during the proceedings.