2013 C L C 746

2013 C L C 746

[Lahore]

Before Sagheer Ahmed Qadri, J

FAUJI FOUNDATION----Petitioner

Versus

Raja GHAZANFAR ALI and others----Respondents

Civil Revision No.1243 of 2010, decided 25th October, 2012.

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

----S. 12(2)---Limitation Act (IX of 1908), Art. 181---Application under S.12(2), C.P.C.---Limitation---Article 181 of Limitation Act, 1908 would apply to such application and period of 3 years provided thereunder could be calculated from date of knowledge of alleged fraud and misrepresentation committed by a party.

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

----S. 12(2) & O. XX, R. 19---Limitation Act (IX of 1908), Art.181---Preliminary decree in partition suit---Application under S.12(2), C.P.C. filed on 11-11-2010 for setting aside said decree passed on 13-5-2004---Validity---Article 181 of Limitation Act, 1908 would apply to such application and period provided thereunder could be calculated from date of knowledge of alleged fraud and misrepresentation committed by a party---Applicant being defendant in suit had challenged final decree dated 8-11-2006, but failed upto Supreme Court---Applicant had withdrawn his petition from Supreme Court on 17-9-2010---Applicant had made application under S.12(2), C.P.C. on the basis of facts alleged in application dated 6-9-2001 for permission to adduce additional evidence during appeal---Appellate Court had dismissed such application for production of additional evidence on 10-12-2001---Facts alleged in application under S.12(2), C.P.C. were in the knowledge of applicant in September, 2001 much prior to passing of impugned decree on 13-5-2004---Application under S.12(2), C.P.C. was time-barred, thus, calling respondent to file written reply thereto and framing of issue would be a futile exercise---Application under S.12(2), C.P.C. was dismissed in circumstances.

            Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197; Shamail Masud v. Malik Manzoor Ahmad and 4 others 2007 CLC 1507; Wazir Ali v. Allah Ditta and 6 others 1994 CLC 1135; Mst. Shamim Akhtar and 3 others v. District Judge, Narowal and 9 others 2001 CLC 1265; Haji Abdul Ghafoor v. Abdul Qayyum and 3 others 1996 SCMR 1524; Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Munir Ahmad Khan v. Sameeullah Khan and 7 others 1986 CLC 2655; Muhammad Aslam and others v. Mst. Kundan Mai and others 2004 SCMR 843; Faiz-ul-Hassan Qureshi v. Hamid Siddiqui 2008 YLR 1931; Noon Muhammad and 17 others v. Rahim Bakhsh and 33 others 2010 CLC 528; Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd. 1989 CLC 2117; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Muhammad Khan v. Mst. Akbari and 10 others 1994 CLC 500; Ch. Riaz Ahmed Khan  v. Muhammad Anwar Khan and others PLD 2003 SC 484; Mst. Shahida Hakim  through General Attorney v. Tanveer Ahmad Khan through General Attorney and others 2008 YLR 119; Mir Taj Muhammad Khan Jamali v. Regional Development Finance Corporation Head Office Ghousia Plaza, 20-Blue Area, Islamabad and 3 others 1999 CLC 350; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Mustafa Kamal and others v. Daud Khan and others; PLD 2004 SC 178 and Secretary Education Department, Government of N.-W.F.P.,  Peshawar and others v. Asfandiar Khan 2008 SCMR 287  ref.

            Warriach Zarai Corporation v. F.M. United (Pvt.) Ltd. 2006 SCMR 531  rel.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Application under S.12(2), C.P.C. being time-barred---Effect---Calling respondent to file written reply and framing of issues in such case would be a futile exercise.

            Warriach Zarai Corporation v. F.M. United (Pvt.) Ltd. 2006 SCMR 531  rel.

            Hafiz Saeed Ahmad Sheikh for Petitioner.

            Noor Muhammad Niazi for Respondents Nos.1 to 9.

            Mrs. Sarkar Abbas for Respondents Nos.10 and 11.

ORDER

            SAGHEER AHMED QADRI, J.--- Respondents Nos.1 to 9 filed suit for partition through separate possession wherein present petitioner was shown as defendant whereby respondents claimed themselves as co-sharers in respect of Khasra No.1324, detail of which is given in paras Nos.2 to 8 of the plaint. That suit was resisted by the defendant, present petitioner, by filing written statement. After framing of issues, learned trial court recorded the evidence and vide judgment and decree dated  21-9-1999 dismissed the suit. Appeal was filed by the respondents and learned appellate court vide judgment and decree dated 13-5-2004 allowed the same and passed a preliminary decree and remanded the matter to the learned trial Court for further proceeding in accordance with law.

2.         Subsequently final decree for partition was passed on 8-11-2006. The learned trial court vide order dated 26-5-2009 put the property into auction to implement the decree. Said order dated 26-5-2009 was challenged in Civil Revision No.15 of 2009, which was dismissed and present petitioner preferred Writ Petition No.1650 of 2009, which was also disallowed by this Court vide order dated 24-7-2009. The dismissal of said writ petition was challenged by the petitioner in C.P.L.A. No.1657 of 2009 before the Hon'ble Supreme Court of Pakistan and vide order dated 17-9-2009 the petitioner withdrew the same and later on moved petition under section 12(2), C.P.C. to challenge the judgment and decree dated 13-5-2004 passed by learned Additional District Judge, Rawalpindi on the grounds of fraud and misrepresentation played by respondents Nos.1 to 9 as they suppressed material facts from the court in getting the decree. The learned Additional District Judge seized of the matter outrightly vide impugned order dated 13-11-2010 dismissed petition under section 12(2), C.P.C. being non-maintainable as barred by time. Feeling aggrieved instant civil revision is moved.

3.         Learned counsel for the petitioner contends that in application under section 12(2), C.P.C., in para No. 11, it was agitated that as land in question was acquired by the Federal Government vide Award dated 28-9-1967, for the use of Military purposes, that Award although was acted upon but was not incorporated in the Revenue Record and getting benefit of that deficiency in connivance with the MEO authorities, respondents Nos.1 to 9 filed suit for partition and decree was obtained by misrepresentation, fraud and playing on Court proceedings; that respondents' predecessor having full knowledge of the acquisition of the property, got decree for partition in respect of the acquired land in their favour on 22-5-1970. Learned counsel for the petitioner further contends that although petitioner had been pursuing the case at trial stage and appellate stage earlier but as the respondents had no entitlement hence their suit itself was without any cause of action and as some new facts subsequently unearthed and came into the knowledge of the petitioner, hence, it arises occasion for filing of the petition under section 12(2), C.P.C. He referred Annexure-N at page 63 of the file wherein letter dated 10-8-2010 was shown written by the Military Estates Officer, Rawalpindi to the Fauji Cereals showing that Khasra No.1026 at Mouza Jarahi  was  included  in  the  award.  Learned  counsel  further  referred page 63-A showing the copy of award wherein this khasra number is included therein. Learned counsel further referred the plaint at page 72 (Annexure-R) wherein the predecessor of the respondent himself admitted selling of 6 kanals of the land bearing Khasra No.1026 and also alleged that remaining 6 kanals were also got possessed by the petitioner. Learned counsel referred Annexure-M at page 62 of the file, a letter written by respondent No.4/MEO to the DDO(R), Rawalpindi for getting demarcated the land in question. Learned counsel for the petitioner while referring the impugned order dated 13-11-2010 referred that firstly although it is recorded by the Additional District Judge that preliminary arguments were heard and record perused but no arguments were recorded nor reproduced and then further referred its para 3 wherein none of the factual aspects agitated by the petitioner in application under section 12(2), C.P.C. were referred nor discussed and only on the ground that as earlier petitioner had been pursuing the suit till the Hon'ble Supreme Court of Pakistan and otherwise found that it was barred by time, dismissed the same; that the judgment is without any reasoning and lacking the material in that respect. Contends that although the residuary Article 181 of the Limitation Act is applicable in the application under section 12(2), C.P.C. but the time is to be reckoned from the date of knowledge and as in this case some factual aspects were unearthed and came into knowledge of the petitioner later on, hence, it was well within time. While referring "Mrs. Anis Haider and others v. S. Amir Haider and others" (2008 SCMR 236) it was argued that as in this case some factual controversies were raised, therefore, without framing of issue and recording evidence, petition could have not been decided and thus learned trial Court committed material irregularity. Relies on "Government of Sindh and another v. Ch. Fazal Muhammad and another" (PLD 1991 Supreme Court 197), "Shamail Masud v. Malik Manzoor Ahmad and 4 others" (2007 CLC 1507), "Wazir Ali v. Allah Ditta and 6 others" (1994 CLC 1135), "Mst. Shamim Akhtar and 3 others v. District Judge, Narowal and 9 others" (2001 CLC 1265), "Haji Abdul Ghafoor v. Abdul Qayyum and 3 others" (1996 SCMR 1524), "Mrs. Anis Haider and others v. S. Amir Haider and others" (2008 SCMR 236), "Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others" (2003 SCMR 1050), "Munir Ahmad Khan v. Sameeullah Khan and 7 others" (1986 CLC 2655), "Muhammad Aslam and others v. Mst.  Kundan Mai and others" (2004 SCMR 843), "Faiz-ul-Hassan Qureshi v. Hamid Siddiqui" (2008 YLR 1931), "Noon Muhammad and 17 others v. Rahim Bakhsh and 33 others" (2010 CLC 528), "Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam and Imam Ltd." (1989 CLC 2117) and "Fauji Foundation and another v. Shamimur Rehman" (PLD 1983 Supreme Court 457).

4.         Learned counsel for respondents Nos.1 to 9 referred the judgment dated 13-5-2004 at Para 9 whereby while discussing Issue No.2 the learned Additional District Judge held that land in question was acquired to the extent of 3 Kanals, 11 marlas and two Khasra Nos.1026/1 and 1026/2 were established. Learned counsel referred the application under section 151, C.P.C. moved by the petitioner for summoning of the records about the Notification No. M-VII/357/10441 dated 1-10-1966 whereby the land was acquired. Learned counsel argued that as application under section 12(2), C.P.C. was hopelessly barred by time hence it was rightly dismissed as such framing of issues was not necessary. Reliance is placed on "Muhammad Khan v. Mst. Akbari and 10 others" (1994 CLC 500), "Ch. Riaz Ahmed Khan  v. Muhammad Anwar Khan and others" (PLD 2003 Supreme Court 484), "Mst. Shahida Hakim  through General Attorney v. Tanveer Ahmad Khan through General Attorney and others" (2008 YLR 119), "Mir Taj Muhammad Khan Jamali v. Regional Development Finance Corporation Head Office Ghousia Plaza, 20-Blue Area, Islamabad and 3 others" (1999 CLC 350), "Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd." (2006 SCMR 531), "Nazir Ahmed v. Muhammad Sharif and others" (2001 SCMR 46), "Mustafa Kamal and others v. Daud Khan and others" (PLD 2004 Supreme Court 178) and "Secretary Education Department, Government of N.-W.F.P., Peshawar and others v. Asfandiar Khan" (2008 SCMR 287).

5.         Learned counsel for respondents Nos.10 and 11/Standing Counsel has argued that actually both sides are not owner in respect of the disputed portion of the land rather as it has been acquired for military purposes and right of respondent No.10 is to be kept in mind while disposing of this question as learned counsel for the petitioner has referred certain documents between MEO and DDO(R) for getting demarcated the land in the light of the earlier awards issued.



6.         I have considered the arguments advanced by learned counsel for the parties and have gone through the record.

7.         Admitted facts between both sides are that respondents Nos.1 to 9 filed suit for partition on 21-2-1998 and the petitioner Messrs Fauji Foundation put in appearance, filed the written statement and ultimately suit was dismissed by the learned trial Court vide judgment and decree dated 21-9-1999. Respondents Nos.1 to 9 filed Civil Appeal No.220 which was heard and decided by the learned Additional District Judge vide judgment and decree dated 13-5-2004 whereby a preliminary decree was passed, as it was a suit for partition, declaring the petitioner and respondents Nos.1 to 9 entitled for 15/39 and 24/39 shares respectively. The learned trial Court later on passed the final decree on 8-11-2006, assailed by the petitioner, which was set aside on 13-3-2009 by the learned Additional District Judge and later on vide order dated 26-5-2009 learned Civil Judge passed an order and put the property for sale through auction. Said order was assailed through a Revision Petition No.15 of 2009 which was dismissed by the learned Additional District Judge on 17-7-2009. Said order was further challenged by the petitioner in Writ Petition  No.1650  of  2009  that  too  was dismissed  by  this  Court  on 24-7-2009. Subsequent to dismissal of the said writ petition petitioner preferred C.P.L.A. No.1657 of 2009 which was dismissed as withdrawn by the Hon'ble Supreme Court of Pakistan vide order dated 17-9-2009 while observing:---

"Learned counsel for the petitioner submits that although petitioner has serious reservations about the report as it is of the view that the entire khasra mentioned therein, stood acquired by the Ministry of Defence and compensation paid, yet he would not press the petition for the present but petitioner or the person/authority affected reserves the right to seek appropriate remedy under the law.

2.         Be that as it may, this petition is disposed of as not pressed."

After withdrawal of the above mentioned petition from the Hon'ble Supreme Court of Pakistan, as already mentioned, petitioner moved application under section 12(2), C.P.C. challenging the judgment and decree dated 13-5-2004 on the basis of fraud and misrepresentation as it was alleged that factum of acquisition of the land was intentionally suppressed from the court and that petitioner later on came into the knowledge  of  these  records  and  factum  of  acquisition  for  use  of military purposes, hence, petition under section 12(2), C.P.C. was maintainable.

8.         Admittedly as no limitation is provided for filing of petition under section 12(2), C.P.C., hence, residuary Article 181 of the Limitation Act is applicable, wherein period of 3 years is provided for filing  of any such application. That period of three years further can be calculated from the date of knowledge of the alleged fraud or misrepresentation committed by a party. Herein this case, admitted facts are that petitioner right from the beginning was arrayed as defendant in suit for partition, which was initially dismissed, went in appeal before the learned Additional District Judge wherein preliminary decree dated 13-5-2004 was passed and matter was sent to the learned trial Court to further proceed in accordance with law to act upon the preliminary decree. Admittedly, the final decree was passed on 8-11-2006, which was  also  challenged  by  the  petitioner  and  ultimately  vide  order dated 26-5-2009 the learned trial Court put the property into auction for sale to implement the said decree. As already mentioned, that order was also challenged by the petitioner in Civil Revision which resulted in dismissal and Writ Petition No.1650 of 2009 was filed which also ended in failure. Petitioner thereafter filed C.P.L.A. No.1657 of 2009 and after arguing at length learned counsel for the petitioner opted to withdraw the same on 17-9-2010 whereby learned counsel for the petitioner while withdrawing that petition perhaps got an observation by the Hon'ble Supreme Court of Pakistan that petitioner wanted to get redressed their grievance through any other process of law and without commenting upon that the Hon'ble Supreme Court of Pakistan dismissed the petition while observing in para 2 of the order:---

"Be that as it may, this petition is disposed of as not pressed."

9.         Admittedly, petition under section 12(2), C.P.C. was filed by the  petitioner on  11-11-2010  whereby  judgment  and  decree  dated 13-5-2004 was challenged. During arguments learned counsel for the respondents referred that during pendency of appeal before the learned Additional District Judge, an application was moved by the petitioner for grant of permission to adduce additional evidence and some facts and records which came into the knowledge on the basis of which application under section 12(2), C.P.C. was filed. I have summoned the record of the appeal. In Appeal No.220 decided on 13-5-2004 there are two applications present on said file moved by petitioner; first application was moved by the petitioner under section 151, C.P.C. with a prayer for summoning of the same record of acquisition which according to the petitioner later on was unearthed and came into the knowledge on the basis of which petition under section 12(2), C.P.C. was moved. It is worth-mentioning that application under section 151, C.P.C. as mentioned above was moved by the petitioner on 6-9-2001, which application, however, was dismissed by the learned Additional District Judge on 10-12-2001 being non-maintainable and subsequently on the same facts petitioner moved an application for grant of permission to adduce additional evidence on 8-4-2002. Written reply of said application was also submitted by respondents Nos.1 to 9. If the arguments advanced by learned counsel for the petitioner and plea raised in application under section 12(2), C.P.C. are seen, showing the date of knowledge subsequent to withdrawal of C.P.L.A. from the Hon'ble Supreme Court of Pakistan, the plea raised by petitioner seems to be without any substance. Facts which are now being agitated rather came into the knowledge of the petitioner in the light of application moved by the petitioner in September, 2001 and subsequent petition in April, 2002 were in the knowledge of the petitioner even much prior to passing the decree dated 13-5-2004, hence, the learned Additional District Judge rightly found the petition under section 12(2), C.P.C. hopelessly barred by time and it was rightly dismissed.

10.       Second aspect as agitated by learned counsel for the petitioner that learned Additional District Judge did not frame any issue to dispose of the controversial factual questions, it was agitated that it was mandatory for the learned Additional District Judge to call the respondents, get written reply and then frame the issue out of the pleadings of the parties to decide the controversial questions accordingly. I am sorry the proposition built in by learned counsel for the petitioner is unfounded. The Hon'ble Supreme Court of Pakistan in a judgment cited as "Warriach Zarai Corporation v. F.M. United (Pvt.) Ltd." (2006 SCMR 531) held as under:---

"Framing of issues and recording of evidence is not obligatory for Court to decide application under section 12(2), C.P.C., which can be rejected on the basis of available evidence and relevant record, if it is considered sufficient to decide such application. Primarily, it is the satisfaction of Court either to frame issues, record evidence or decide such application as may be deemed fit and proper after considering the circumstances of each case. No yardstick can be fixed for adjudication of such application."

Even otherwise in the present case as already mentioned petition was hopelessly barred by time, therefore, calling of the respondents, getting written reply and framing of issues was a futile exercise, hence, learned trial Court rightly passed the impugned order dated 13-11-2010 while dismissing the application under section 12(2), C.P.C. Resultantly, this civil revision being without any merit is hereby dismissed, however, with no order as to costs.

SAK/F-36/L                                                                                        Revision dismissed.