2014 C L C 1172

2014 C L C 1172

[Sindh]

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

Mst. HAMIDA FATIMA and another----Petitioners

Versus

HASHMAT ALI CHAWLA and 3 others----Respondents

Constitutional Petition No.D-4177 of 2011, decided on 29th March, 2014.

Civil Procedure Code (V of 1908)---

----S. 12(2), O.I, R.10 & O.XVII, R.3---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance---Scope of S.12(2), C.P.C.---Lower Courts dismissed petitioner's applications under S.12(2) and O.I, R.10, C.P.C. filed in a dismissed suit on the basis of agreement to sell which the petitioner had entered into with one of the parties to the said dismissed suit---Validity---Jurisdiction of civil court under S.12(2), C.P.C. could be invoked where a judgment, decree or order was obtained by fraud or misrepresentation---Party was bound by determination of court---Orders passed with jurisdiction, whether such orders were right or wrong, were binding on the parties unless such orders had been set aside by proper forum---Fraud and misrepresentation vitiated proceedings---Where civil court was satisfied that an order or decree had been obtained by fraud or misrepresentation, court could recall the order or decree at its own motion without application by an aggrieved party under S.12(2), C.P.C.---Section 12(2), C.P.C. provided immediate (expedious) remedy to an aggrieved person without filing a fresh suit---Petitioner had no locus standi to revive proceedings of the suit dismissed under O.XVII, R.3, C.P.C.---Petitioner failed to establish ownership of suit property---Party to the suit who entered into agreement to sell with petitioner was neither bona fide owner of the suit property nor had any legal authority to sell the same---Petitioner having no legal right over the suit property failed to establish that decree was obtained by fraud or misrepresentation---Petition, being devoid of merits, was dismissed.

            1980 CLC 595; PLD 1985 Pesh. 91; 2000 YLR 2723 and 2004 CLC 1175 distinguished.

            Naseer Ahmad for Petitioners.

            Dildar M.S. Shaikh for Respondent No.2.

            Date of hearing: 23rd October, 2013.

ORDER

            SHAHNAWAZ TARIQ, J.--- Through this petition, petitioners Mst. Hamida Fatima and Muhammad Khalid have brought their grievance with following prayers:---

            "That this honourable Court may be pleased to set aside the impugned orders dated 11-10-2011 and earlier order dated 7-7-2010 along with judgment and decree dated 10-4-2004 and 14-4-2004 and allow the applications under section 12(2), C.P.C. and under Order I, Rule 10, C.P.C. and direct the trial Court to proceed the matter further on merit."

2.         Relevant facts spelt out from the instant petition are that Karachi Development Authority (KDA) launched a project under the name and style of Messrs Sea Breeze Plaza for lower income group at Plot No.ST-6, Main Shahrah-e-Faisal, Karachi. Respondent No.2 was engaged by KDA for construction of multistoreyed building, commonly known as Sea Breeze Plaza, containing flats and shops. Petitioner No.2 booked a Flat No.303-B in said project and same was allotted to the petitioner No.2 against a total sale consideration of Rs.219,000, which was duly paid to respondent No.1 being manager of respondent No.2. In addition to above amount an amount of Rs.60,000 was also paid towards House Building Loan.

3.         It is further stated that despite payment of total sale consideration, the possession of the said flat was not handed over to the petitioner No.2, due to counter-claim from Messrs Crescent Enterprises. There was litigation between respondent No.2 and Messrs Crescent Enterprises upon purchase of 6 flats by Messrs Crescent Enterprises, including Flat No.303-B, but as a result of compromise between the parties, possession of Flat No.303-B was handed over to the petitioner No.2. After taking over possession of the said Flat, petitioner No.2 approached the respondents for execution of sub-lease in respect of the said Flat, but respondent No.1 informed him that he has already got lease in respect of the said Flat in his own name vide Indenture of Lease dated: 20-10-1981. It is further stated that upon revealing of the commission of fraud upon the petitioner No.2, he filed Civil Suit No.269 of 2000 before this Court, which was subsequently transferred to District Court due to change in pecuniary jurisdiction, and same was re-numbered as Suit No.1694 of 2002.

4.         It is further stated that on 30-7-2003, the petitioner No.1 entered into sale agreement with petitioner No.2 and purchased said Flat No.303-B, Sea Breeze Plaza, for a total sale consideration of Rs.300,000 and took over the physical possession of the said flat and since then is residing there. It is further stated that petitioner No.2 left for USA, but neither he nor his attorney informed the petitioner No.1 about proceedings of Suit No.1694 of 2002, which was dismissed under Order XVII, rule 3, C.P.C. by the trial court despite of affording ample opportunities to the petitioner No.2 to lead his evidence but he failed to adduce the same to prove his claim as directed by the learned trial court. During the litigation, between the petitioner No.1 and one Mst. Nasreen alias Nagina, the petitioner No.1 discovered about the proceedings of Suit No.1694 of 2002 in the Court of VII Senior Civil Judge, Karachi East. Upon having such knowledge, the petitioner No.1 filed applications under Order I, Rule 10, C.P.C. and under section 12(2) C.P.C. in Suit No.1694 of 2002 before the learned trial Court, but both applications were dismissed by the learned trial Court vide order dated: 7-7-2010. Against said dismissal, the petitioner No.1 filed Civil Revision Application No.95 of 2010, which was also dismissed by the learned III Additional District Judge, Karachi East, vide order dated 11-10-2011, and those impugned orders have given rise to the instant petition.

5.         Mr. Naseer Ahmed, learned counsel for the petitioner has contended that the learned Trial Courts as well as the Appellate Court have failed to apply their judicial mind and have seriously erred in dismissing the applications under Order I, Rule 10, C.P.C. and section 12(2), C.P.C. by misreading and non-reading the facts and cogent grounds mentioned therein. He further emphasized that findings of learned trial Court to file civil suit for specific performance of contract by petitioner No.2 against the respondent No.1 are totally illogical and unlawful, as the petitioner No.1 is already in exclusive possession of the said flat. He further argued that judgment and decree passed on 7-10-2004 and 14-10-2004 respectively are in gross violation of the settled principle of law laid down by the superior Courts. He further contended that it has been wrongly held by the leaned Appellate Court that the petitioner has badly failed to prove any fraud and misrepresentation committed by the respondents. He lastly contended that the trial Civil Court was bound to reopen the proceedings of main suit and to implead the petitioner No.1 being the necessary party and to decide the suit in the specific purview that petitioners have their legal right being lawful purchaser of the said flat. In support of his contentions, learned counsel for the petitioner has relied upon 1980 CLC Lahore 595, PLD 1985 Pesh. 91, 2000 YLR 2723 and 2004 CLC Lahore 1175.

6.         At first hand, we would like to discuss the case-law relied upon by the learned counsel for the Petitioner.

7.         In case of Karim Bux and two others v. Mst. Wazir Khanum, 1980 CLC 959, it has held that Order XVII, Rule 3 applies only to cases where party was granted adjournment on his own request for taking certain steps to bring suit to trial, but fails to do so, Court considering any further adjournment underserving may proceed to decide the suit forthwith.

8.         In case of Nasim Javed v. National Bank of Pakistan, PLD 1985 Peshawar 91, it has held that Court should proceed under Order XVII, Rule 3, C.P.C. and decide suit forthwith on merits in case party which was granted adjournment on his own request for taking certain step to bring suit to trial not only failed to do so but also committed default in appearance, Provisions of Order XVII, Rule 3, C.P.C. are applicable.

9.         In case of Mst. Shaheen Qureshi v. Javid Qureshi, 2000 YLR 2723, it has held that where evidence could not be produced on the date fixed for that purpose on account of the arrest of the counsel for the petitioner, thus further time should have been granted to her to do the needful. The order of closure of evidence passed by the trial Court was not in consonance with the provisions of Order XVII, Rule 3, C.P.C., and judgment and decree passed by the courts below were set aside and case was remanded to the trial Court to decide it afresh.

10.       In case of Mst. Nazima Batool alias Nazim Batool v. Shabar Ali Shah (2004 CLC Lahore 1175), wherein it has held that suit filed by the petitioner was ultimately dismissed for lack of proof under Order IXVII, Rule 3, C.P.C. by the trial Court and appeal by the petitioner also remained unsuccessful; contention of the petitioner was that her right to produce evidence was incorrectly closed as the case was adjourned in routine on account of sickness of the petitioner and without any objection by the respondent, and neither condition of final opportunity was imposed on her nor was she subjected to any kind of costs. Said adjournment being in routine, therefore, penal action against the petitioner was not justified. The revision application was allowed.

11.       Learned counsel for the respondent has contended that petitioner No.1 claimed to be the purchaser of the subject property by virtue of agreement to sell dated 30-7-2003, allegedly executed between the petitioner No.1 and petitioner No.2, but she instead of filing suit for specific performance of contract against petitioner No.2 as provided by law, with ulterior motive filed applications under section 12(2), C.P.C. and under Order I, Rule 10, C.P.C. in the dismissed Suit No.1694 of 2002, therefore, said applications were rightly dismissed by the learned trial Court and revision application by the learned III Additional District Judge, Karachi East. He further argued that petitioner No.2 had filed the suit referred supra but failed to adduce his evidence despite opportunities afforded by the trial Court, which ultimately was dismissed. The petitioner No.2 had failed to challenge the judgment and decree dated: 7-10-2004 and 14-10-2004, respectively, passed in Suit No.1694 of 2002, as such, the same attained finality. He lastly argued that the instant petition is meritless, misconceived and without any legal force, hence, liable to be dismissed.

12.       We have carefully heard the arguments of the learned counsel for the parties, cited case-law and scanned the record available in the file. From the above referred case-law, it is crystal clear that superior courts have held that where the party before the Court fails to produce evidence in support of his claim if final notice was given to him by the Court, his suit can be proceeded with under the provisions of Order XVII, Rule 3, C.P.C. In present controversy, the petitioner No.1 was not party to the main suit which was dismissed by the learned Civil Court under Order XVII, Rule 3, C.P.C., therefore, she cannot take benefit of the above cited case-laws.

13.       Perusal of record reflects that petitioner No.2 allegedly had booked subject flat and paid total sale consideration to the respondent No.1. Despite payment of entire sale consideration, lease of subject flat was not executed in favour of the petitioner No.2, therefore, petitioner No.2 filed Civil Suit No.269 of 2000 for cancellation of documents, and permanent injunction against respondents Nos.1 and 2 before this Court, which was subsequently transferred on the point of pecuniary jurisdiction to the District Court, Karachi East, and was renumbered as Civil Suit No.1694 of 2002 and transferred to the Court of VII Senior Civil Judge, Karachi East. The respondents/defendants filed their written statements and issues were framed by the trial Court. Thereafter the case was pending for want of evidence of petitioner No.2, but he did not turn up before the Court to lead his evidence, and ultimately the trial Court dismissed said suit under Order XVII, Rule 3, C.P.C. by giving findings upon all the issues vide judgment dated 7-10-2004. The petitioner No.2/plaintiff remained silent and did not challenge said judgment and decree which attained finality. Thereafter, the petitioner No.1 appeared in picture and filed application under section 12(2), C.P.C. before the trial Court along with application under Order I, Rule 10, C.P.C. with prayer to set aside the impugned judgment passed under Order XXVII, Rule 3, C.P.C. and implead her as necessary party to said dismissed suit, as she had purchased suit flat from the petitioner No.2 on 30-7-2003, but said applications were dismissed by the trial Court vide order dated: 7-7-2010. The petitioner No.1 also filed Civil Revision No.95 of 2010 before the Court of District Judge Karachi East which was also dismissed by the court of Learned III Additional District Judge, Karachi East vide order dated: 11-10-2010.

14.For appropriate decision, the provision of section 12(2), C.P.C. is reproduced as under:---

            "Section 12(2).--- 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."

15.       For invoking jurisdiction of Civil Court under section 12(2), C.P.C., it is mandatory that there must be a judgment, decree or order passed by the Court on the basis of misrepresentation and fraud. If there is no such judgment, decree or order in field then nobody can seek any remedy from any court on the strength of application filed under section 12(2), C.P.C. A party is bound by a determination of a court unless it is totally without inherent jurisdiction, but an order with jurisdiction, whether right or wrong is binding and cannot be ignored unless it is set aside by a proper forum in appeal, revision, review or under section 12(2), C.P.C. The factum of fraud and misrepresentation vitiates most solemn proceedings either conducted by the Civil Court or Appellate forum. The scope of a Civil Court to deal with the issue of fraud and misrepresentation is that if the Civil Court is satisfied that subject order or decree has been obtained under the shadow of fraud and misrepresentation, the Court can recall its own order or decree by its own motion even without moving any application under section 12(2), C.P.C. by the aggrieved party. The scheme and the wisdom evolved in the provision of section 12(2), C.P.C. is to provide immediate legal remedy to an aggrieved person who has been deprived from his legal right by playing fraud and misrepresentation of the facts. The aggrieved person instead of filing a fresh suit and to start again from the beginning to an end, has the remedy under section 12(2), C.P.C. to step-in in the earlier suit or such other proceedings initiated before the Civil Court or appellate forum.

16.       In the present proceedings, the conduct of the petitioner No.1 in the absence of any element of miscarriage of justice, having been caused to her by the trial Court by way of fraud and misrepresentation, seems to contumacious, ab intio void and superfluous, therefore, the petitioner No.1 has no locus standi to get revived the proceedings of subject suit which was dismissed by the learned trial court under Order XVII, Rule 3, C.P.C. after discussing all issues settled by the Court vide judgment dated: 7-10-2004.

17.       Accordingly, we are of the view that the petitioner No.1 has failed to establish her ownership over the suit flat, as admittedly the respondent No.2 had executed lease deed in favour of the respondent No.1 on 20-10-1981, which is still in field. Accordingly, the existence of said lease deed negates any legal right of sale of subject flat in favour of the petitioner No.2 who was neither bona fide owner of said flat nor having any legal authority to sale out subject flat to the petitioner No.1, therefore, we have no hesitation in our mind that petitioner No.1 neither has no any locus standi nor legal right over the subject flat nor she has established that the judgment and decree passed in Suit No.1694 of 2002 was obtained by fraud or misrepresentation.

18.       Consequently, the petitioner No.1 has no legal right to be impleaded as Intervener and to reopen the proceedings of suit which were dismissed vide impugned judgment by the trial Court, and attained finality as the petitioner No. 2 has never challenged impugned judgment of the trial court before any appellate forum, therefore, the petitioner No.1 cannot be permitted to agitate the judgment passed by the Civil Court against the petitioner No.2 by invoking the jurisdiction of the Civil Court under section 12(2), C.P.C.

19.       After anxious assessment of factual and legal aspects of the circumstance narrated in the petition and in purview of the section 12(2), C.P.C. and case-law discussed supra, we found no illegality or irregularity in impugned judgments dated: 7-7-2010 and 11-12-2011 passed by the learned trial court as well as the learned appellate court respectively, this petition being devoid of legal merits stands dismissed.

20.       These are the reasons and findings for the dismissal of instant petition through short order dated: 23-10-2013, by this court.

ARK/H-14/Sindh                                                                                 Petition dismissed.