2013 M L D 310

2013 M L D 310

[Peshawar]

Before Waqar Ahmad Seth, J

Mian AZIZ-UL-HAQ---Applicant

Versus

ADIL INTERNATIONAL PVT. LTD. and others---Respondents

Civil Miscellaneous No.8 of 2011 in Execution Petition No.1/10 of 1993, decided on 10th December, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application against order obtained through fraud, misrepresentation or want of jurisdiction---Application filed under S.12(2), C.P.C. alleged that respondent was favoured by officials and mutations in execution petition filed by respondent were attested vide table rate for the year 2004, which were much less than the rates of the prevailing period---Applicant who was a contractor had alleged that due to concealment and misrepresentation by the respondents he had suffered monetarily and the Public Exchequer had also suffered due to the connivance of respondents---Court while passing impugned order trusted the words of officials, which benefited respondent and Public Exchequer---Record had reflected that fraud and misrepresentation both had been committed by the respondent in connivance and collaboration with officials---Respondent/Officials/Tehsildar and Halqa Patwari had totally misinterpreted and misguided the court by falsely informing that they could not find the evaluation report despite making hectic efforts---Evaluation report, once issued was dispatched to almost 10/11 different offices---Statement of officials that they could not locate the same was false and mala fide---Case of misrepresentation having been made out by the applicant against the respondent, court  set aside impugned order in circumstances.

            1993 CLC 2073; 2001 SCMR 1822 and PLD 1971 SC 677 ref.

            2009 CLD 1389; 2010 CLC 1545; 2012 CLD 571 and 2011 SCMR 1854 rel.

            Sahibzada Assadullah for Applicant.

            Naveed Ali Khan for Respondent No.1.

            Ghulam Mohyuddin Malik for Respondents Nos. 2, 4 and 5.

            Riaz Ali for Respondent No.7.

ORDER

            WAQAR AHMAD SETH, J.---Applicant, Mian Azizul Haq has filed this application under section 12(2), C.P.C. against the impugned judgments/orders dated 22-11-2010 and 14-3-2011 of this Court in execution petition No.1/10/1993, whereby respondent No.1 was favoured by rest of the respondents Nos.2 to 6 and mutation Nos.3432 and 1164 dated 9-4-2011 were attested vide table rate for the year, 2004 which were much lesser than the rates of the prevailing period, 2000.

2.         Learned counsel for the applicant contended that applicant is contractor of 2% mutation tax and due to the concealment and misrepresentation he has suffered a lot, monetary loss as well as the public exchequer has also suffered due to the connivance of the respondents Nos.1 to 6.

3.         The background of the case is that respondent No.1 moved a C.M. No.10 of 2010 in execution petition, with the prayer for direction to respondents Nos.2 to 6 to enter and attest the mutation regarding the purchased property and this Court vide judgment dated 22-11-2010 issued the direction for redressing the grievance of respondent No.1/petitioner. Subsequently, respondent No.1 filed a contempt application COC No.71 in C.M. No.10 of 2011 and this Court passed the order dated 14-3-2011. The same order was passed on the misrepresentation of one DOR Subhanullah and Ishfaq Muhmand DDOR, whereby they concealed the existing table rates for the year, 1996-1999 and produced the table rates of 2004, which were much lesser. The District Collector was in league with respondent No.1 and willfully concealed two notifications/table rates for the year, 1996 and 1996, which were still in vogue.

4.         This Court while passing the order dated 14-3-2011 trusted the words of respondents Nos.2 to 6, which ultimately benefited the respondent No.1 and the public exchequer was given grave monetary  loss in addition to monetary benefits to the rest of the respondents Nos.2 to 6.

5.         As against this, learned counsel for the respondent No.1 contended that the application under section 12(2), C.P.C. is neither competent nor the applicant has any locus standi to move the same. There is no proof that the impugned order was obtained through fraud, misrepresentation or want of jurisdiction, thus, in the absence of such grounds the application in hand is not triable and maintainable, specially in the circumstances, when applicant has executed a contract with respondents Nos.2 to 6 wherein, clauses 12, 13 and 14 are relevant.

6.         Learned counsel for respondents Nos.2, 4 and 5 contended that there is no decree/order of this Court involved rather the final order is the attestation of mutation of the revenue authorities against which no application under section 12(2), C.P.C. lies in this respect, he relied on 1993 CLC 2073, 2001 SCMR 1822 and PLD 1971 SC 677.

7.         Learned counsel for respondent No.7 fully supported the arguments of applicant and referred to the letter dated 12-4-2011 of applicant and in response to that letter dated 13-4-2011 of Administrator TMA, Nowshera, to the District Officer/Collector Revenue and Estate Department, Nowshera.

            Arguments heard and record perused.

8.         For the convenience, section 12(2) of C.P.C. is reproduced in order to resolve the controversy through the instant application.

            Section 12(2), C.P.C. Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

9.         This Court is creation of a special enactment, thus, any fraud, misrepresentation etc, can be looked into it, while placing reliance on 2009 CLD 1389, 2010 CLC  1545, 2012 CLD 571 and 2011 SCMR 1854.

10.       From the  plain  reading  of  the  record,  it  reflects  that  fraud  and  misrepresentation  both  have  been  committed by respondent No.1  in  connivance  and  collaboration  with  respondents  Nos. 2  to  6,  on the  face  of it. If the element of fraud is not touched, the element of misrepresentation is flowing from the record.

11.       Since the order dated 22-11-2010 was obtained with the following wording "however, to determent the government taxes to be charges/levied upon should be calculated on the basis of market price evaluated by the District Collector during the period of 2000", and order dated 14-3-2011 in COC No.71 of 2011 reads "Mr. Subhanullah, the DOR present in court states that in spite of their hectic efforts, they were unable to find the evaluation report for the year, 2000. However, learned counsel for the petitioner present in court produced copy of evaluation report for the year, 2004 and has expressed his consent that the petitioner be charged according to evaluation report for the year, 2004".

12.       It appears that the DOR, DDOR, Tehsildar and Halqa Patwari present in the court on 14-3-2011 in COC No.71 of 2011 totally misrepresented and misguided the court by falsely informing that they had made hectic efforts but could not find the evaluation report for the year, 2000. The evaluation report once issued is dispatched to almost 10/11 different offices including the Government Printing Press. The very saying that they could not locate the same was a false and mala fide statement. The Notifications dated 2-1-1999 and 7-12-1996 are placed on file by the applicant, which reflect that a copy of the said Notifications was sent to the Manager, Government Printing Press, Peshawar what to say of other 9/10 offices, to which the same were sent.

13.       The statement made by the then DOR, DDOR, Tehsildar and Patwari Halqa, Mouza Aman Garh, Nowshera, by putting a Notification of evaluation report for the year, 2004 in the hand of respondent No.1/petitioner speaks volume of the mala fide of the Government officials and their intention to rob the government of its legitimate revenue, which cannot be expected without having any monetary gain.

14.       All the record has been scrutinized and there is no need of recording of any evidence because a case of misrepresentation has been made out by the applicant against the respondents Nos.1 to 6.

15.       For making assessment for the purpose of duty and taxes per kanal, the relevant table rates for the years, 1996 and 1999, which were Rs.2,20,000 per kanal for commercial property and Rs.1,10,000 for non-commercial, whereas the table rates for the year, 2004 commercial was fixed Rs.1,50,000 and Rs.80,000 for non-commercial which are far lesser than the table rates 1996 and 1999, which is beyond comprehension. In these circumstances, there is no option left for the court to set aside and recall the orders dated 22-11-2010 and 14-3-2011 of this Court.

16.       Before parting with the judgment/order, the competent authority is directed to initiate appropriate departmental action against the then DOR namely Subhanullah, Ishaq Mohmand, DDOR, Liaqat Ali, Tehsildar and Azam Khan, Halaqa Patwari and all those involved in the attestation of Mutations Nos.3432 and 1164 dated 9-4-2011, under intimation to the Registrar of this Court and shall finalize the departmental proceedings against them within a period of one month, positively. Copy of this judgment/order be sent to Senior Member Board of Revenue, Government of Khyber Pakhtunkhwa/ respondent No.6 for initiating the said proceedings against the said officers/officials.

17.       In view of the above, this C.M. is allowed,  the  orders  dated  22-11-2010 and 14-3-2011 stand set aside. C.M. No.10 of 2010 in E.P.No.1/10/1993 stands restored, which shall be deemed to be pending before the Court. The office is directed to issue notices to the party concerned in the said C.M. and also to Administrator, TMA, Nowshera and fix the matter for court proceedings.

HBT/420/P                                                                                          Application allowed.