2013 C L C 1561

2013 C L C 1561

[Sindh]

Before Muhammad Ali Mazhar, J

MUHAMMAD RAMZAN----Applicant

Versus

MUHAMMAD AKBAR BHATTI and others----Respondents

J.M. No.26 and C.M.As. Nos.6078, 6099, 4939 of 2012, , decided on 2nd November, 2012.

(a) Civil Procedure Code (V of 1908)---

----O. XXIII, R.3 & S.12(2)---Suit for declaration of title---Decree on basis of compromise without including one or more defendants in the suit---Defendant/applicant sought setting aside of compromise decree under S.12(2), C.P.C. on the ground that he was not party to said compromise but was party to the suit---Validity---When admitted position was that defendant/applicant was not party to the compromise application, it would be appropriate to set aside compromise decree against the defendant/applicant---High Court directed that suit may proceed against defendant/ applicant in accordance with law and the area  which  was  in  possession of  the  defendant / applicant  shall not  form  part  of  the  compromise  decree between  the  other  parties.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Application under S.12(2), C.P.C. for setting aside a decree/order---Scope and procedure stated.

            Section 12(2) merely postulates an unspecified remedy where a decree suffered from want of jurisdiction or was tainted with fraud or had emerged upon misrepresentation and the court, therefore, has all available options to fashion relief according to the requirement of a situation. In appropriate cases whereupon the recall of the decree, a foreseeable result should follow which may not be different that what could  be  achieved  without  setting  aside  of  the  decree,  a  ratification  or modification  could  be  ordered.  Such  relief  may  even  be  accorded  without  any elaborate  inquiry  and  concomitant  loss of time. When consent decree was obtained by misrepresentation, the application is maintainable for setting aside the decree obtained by misrepresentation. There is no procedure provided to decide application under section 12(2), C.P.C. Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in suit. Matter is left to the satisfaction of the court, which has to regulate its proceedings, and keeping in view the nature of the allegation in the application, the court may in its discretion adopt any mode for its disposal. Concealment of facts before judicial forum would amount to fraud and misrepresentation. Fraud, misrepresentation and circumvention used to obtain judgment were generally regarded as sufficient cause for the opening or vacating thereof particularly where the judgment was obtained against a person without his knowledge. Justice require that every case once tried and finally adjudicated upon by a competent forum must be deemed to be conclusive and binding on the litigants and the parties deriving title from them. The maintenance of pubic order, the repose of society and the quite families required that what has been definitely determined by a competent tribunal  shall  be  accepted  as  irrefrangibly  legal  truth.  If  it  were  not  for  the  conclusive  effect  of  all  such  determination,  there  will  be  no  end of litigation and no security for any person, the rights of parties  would  be involved  in  endless  confusion  and  grave  injustice would  often  be  done  under  cover  of  law.  Act  of  court  shall prejudice no one. Courts were required to do justice between the parties in accordance with the provisions of law, as the litigant, who approached Court for relief was bound to substantiate that procedure has been adopted by him in accordance with law because it was elementary principle of law that if a particular thing was required to be done in a particular manner, it must be done in that manner, otherwise it should not be done at all.

            PLD 2010 Kar. 400 and Muhammad Akram Shaikh v. Messrs Pak Libya Holding Company (Pvt.) Ltd. and others PLD 2010 Kar. 400  rel.

            Shamim Akhtar for Applicant.

            Muhammad Iqbal Ch. for Respondents Nos.1 to 10.

            Syed Muhammad Akbar for Respondent No.11.

ORDER

            MUHAMMAD ALI MAZHAR, J.--- This Judicial Miscellaneous Application under section 12(2), C.P.C. has been filed to challenge compromise decree passed by this court on 28-2-2012 in Suit No.616 of 1998 titled "Muhammad Akbar Bhatti and others against Muhammad Akram Bhatti and others" in which the applicant Muhammad Ramzan was also the defendant No.2. The suit was confined to the portion of 70 Square Yards of the Property bearing No.M-II-E-616, measuring 800 Sq. Yd., situated at Shershah Colony, Karachi which was owned by (late) Ghulam Farid Bhatti predecessor-in-interest of the plaintiffs and the defendant No.1. This suit remained pending for a considerable time however C.M.A. No.1921 of 2012 was filed under Order XXIII, rule 3, C.P.C. whereby the parties agreed to resolve the dispute. It is pertinent to point out that in the prayer clause of main suit, the plaintiffs prayed as under:---

            "It is therefore respectfully prayed that this honourable Court may be pleased to pass a preliminary decree in the above suit and appoint the Nazir of this honourable Court as an Administrator for realizing amounts of rents and for making investigations of selling of piece of land of the property of the deceased, measuring 70 Yards out of total area of 800 Sq. Yards to defendants No.2 by the defendant No.1 and to submit his report to this honourable Court.

            To determine shares of all the legal heirs of the deceased according to their respective shares.

            To realize the amount of rents received by defendant No.l.

            Any other relief/reliefs which this honourable may deem fit and proper under the circumstances of this case."

2.         The grievance of the applicant is that though compromise application was filed but neither the defendant No.2 was made party to the compromise nor he had any information but the plaintiffs and the defendant No.1 filed compromise application in the month of February, 2012 which was allowed by this court vide order dated  28-2-2012 and decree was passed. Learned counsel for the applicant pointed out Paragraph No.2 of the decree in which by consent Administrator was appointed for the property in question with further direction to sell the whole Plot admeasuring 800 sq.yards on maximum prevailing market value and to disburse the amount as per terms of this compromise. Similarly in Paragraph No.4 of the decree, it is further stated that after receiving amount of sale of structure (Malba), a sum of Rs.300,000/- will be paid to the defendant No.2 Muhammad Ramzan. Learned counsel for the applicant argued that both these conditions mentioned in the decree have severely affected the rights of the defendant No.2 and same has been incorporated in the compromise application on misrepresentation of facts and decree was passed without his consent who  was  never  made  party  to  the  compromise  application.  It  was further  averred  that through  aforesaid  compromise,  the  plaintiffs  and  the  defendant  No.1  have  committed  fraud  and  they  have obtained  decree  fraudulently  on misrepresentation  and  concealment of the facts.

3.         Mr.  Muhammad  Iqbal  Ch.,  learned  counsel  for  the respondents  Nos.1 to  10  admits  that  though  compromise  was effected  between  the  plaintiffs  and  the  defendants  but  the  defendant No.2 was not made party to compromise application however he submits that at the best, decree may be set aside against the defendant No.2 and so far as the suit against the defendant No.2 is concerned, the same will remain intact. Syed Muhammad Akbar, learned counsel for the respondent No.11 also argued in the same lines however he submits that the applicant remained absent for a considerable time and he failed to appear in the suit.

4.         Since  it  is  an  admitted  position  that  the  defendant  No.2 was not party to the compromise application hence in all fairness, it would be appropriate to set aside compromise decree against the defendant No.2.

5.         At this juncture I would like to observe that without determination of disputed questions regarding genuineness of compromise and rights of the parties in suit property, the decree on the basis of compromise between the parties in suit with exclusion of applicant would not be sustainable. Section 12(2) merely postulates an unspecified remedy where a decree suffered from want of jurisdiction or was tainted with fraud or had emerged upon misrepresentation and the court, therefore has all available options to fashion relief according to the requirements of a situation. In appropriate cases whereupon the recall of the decree a foreseeable result should follow which may be not different than what could be achieved without setting aside of the decree, a ratification or modification could be ordered. Such relief may even be accorded without any elaborate inquiry and concomitant loss of time. When consent decree was obtained by misrepresentation, the application is maintainable for setting aside the decree obtained by misrepresentation. There is no procedure provided to decide application under section 12(2). Court is not under obligation in every case to frame issues, record evidence of the parties and follow the procedure prescribed for decision in suit. Matter is left to the satisfaction of the court which has to regulate its proceedings and keeping in view the nature of the allegation in the application, the court may in its discretion adopt any mode for its disposal. Concealment of facts before judicial forum would amount to fraud and misrepresentation. Fraud, misrepresentation and circumvention used to obtain judgment were generally regarded as sufficient cause for the opening or vacating thereof, particularly where the judgment was obtained against a person without his knowledge. Justice required that every case once tried and finally adjudicated upon by a competent forum must be deemed to be conclusive and binding on the litigants and the parties driving title from them. The maintenance of public order, the repose of society and the quiet  of  families  required  that  what  has  been  definitely  determined by  competent  tribunal  shall  be accepted  as  irrefrangibly  legal  truth.  If  it  were  not  for  the  conclusive  effect  of  all  such determination,  there  will  be  no  end  of  litigation  and  no  security for any person, the rights of parties would be involved in endless confusion and grave injustice often done under cover of law. Act of court shall prejudice no one. Courts were required to do justice between the parties in accordance with the provisions of law, as the litigant, who approached Court for the relief was bound to substantiate that procedure has been adopted by him in accordance with law because it was elementary principle of law that if a particular thing was required to be done in a particular manner it must be done in that manner, otherwise it should not be done at all. Reference can be made to my own judgment reported in PLD 2010 Karachi 400 and PLD 2010 Kar. 400, (Muhammad Akram Shaikh v. Messrs Pak Libya Holding Company (Pvt.) Ltd. and others).

6.         For the foregoing reasons, the application is disposed of in the terms that compromise decree dated 28th February, 2012 passed in Suit No.616 of 1998 is set aside against the defendant No.2, who was not party to compromise and suit will proceed against him in accordance with law. It is further clarified that portion of 70 Sq. Yds., which is in possession of the defendant No.2 will not form part of the decree. Since the plaintiffs have already compromised the suit with other defendants who are not at issue except defendant No.2, the plaintiff may file amended title in the suit and suit will only proceed against the defendant No.2/applicant. All pending applications are also disposed of. Office shall transmit copy of this order to the Nazir of this court for compliance.

KMZ/M-150/K                                                                                   Order accordingly.