2014 C L C 1384

2014 C L C 1384

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Syed SULTAN SHAH----Petitioner

Versus

GHULAM QADIR and 8 others----Respondents

Writ Petition No.1958 of 2005, heard on 14th April, 2014.

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

----S. 12(2)---Specific Relief Act (I of 1877), S.12 ---Suit for specific performance of an agreement to sell---Decree allegedly obtained by fraud and collusiveness without knowledge of owner of property---Application under S.12(2), C.P.C., filing of---Limitation---Plaintiffs filed a suit for specific performance against the defendant regarding an oral agreement to sell---Defendant filed written statement objecting that he had no nexus with the disputed property and that the petitioner was the actual owner of the property, who should be impleaded as a party to the suit---Trial Court decreed the suit despite such objection from the defendant---Subsequently upon coming to know about the decree petitioner filed an application under S.12(2), C.P.C. for setting aside the same---Appellate court dismissed said application on ground of limitation---Legality---Defendant to the suit had taken a clear stance and objection that disputed property was owned not by him but by the petitioner, who should be impleaded as a party to the suit---Trial Court in light of such objection also framed a specific issue, but despite that did not take care of such issue while passing the decree---Question of limitation was pivotal, but where allegation of fraud and collusiveness was raised by the petitioner in his application under S.12(2), C.P.C., then courts below should have framed issues, collected evidence and then decided the matter---Application under S.12(2), C.P.C. filed by petitioner could not have been decided summarily as the petitioner had raised allegation of fraud and collusion---Petitioner had a cause of action against the plaintiffs, therefore in his absence no valid judgment and decree could have been passed---Impugned judgment of appellate court below was set aside and High Court directed that application filed by petitioner under S.12(2), C.P.C. would be deemed to be pending before the lower appellate court, which shall decide the same after framing of issues and collecting evidence afresh in accordance with law---Revision petition as allowed accordingly.

            Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through Legal Heirs PLD 2006 Lah. 371; Muhammad Ilyas v. Muhammad Bashir PLD 2006 Lah. 365; Mst. Rasool Bibi through Legal Heirs v. Additional District Judge, Sialkot and another PLD 2006 Lah. 181 and Faizum alias Toor v. Nader Khan and others 2006 SCMR 1831 distinguished.

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

----S. 12(2)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Decree obtained by fraud and collusion---Application under S.12(2), C.P.C., filing of---Limitation---Procedure to be adopted by the court---Question of limitation was pivotal and important to decide a lis, but where allegation of fraud and collusiveness was raised by an applicant in his application under S.12(2), C.P.C., then proper course for the Trial Court was to frame issues, collect evidence and then decide the matter.

(c) Limitation---

----Limitation was a mixed question of law and fact.

(d) Fraud---

----Fraud vitiated all solemn acts.

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

----S. 12(2)---Challenging a decree, judgment, instrument or deed obtained by fraud---Limitation---Such decree, judgment, instrument or deed was a nullity in the eyes of law and could be questioned at any time.

(f) Fraud---

----Question of fraud was never purely a question of law and could be thrashed after recording of evidence.

            Mst. Zulaikhan Bibi through L.Rs. and others v. Mst. Roshan Jan and others 2011 SCMR 986 rel.

            Shaigan Ijaz Chadhar for Petitioner.

            Muhammad Baleegh uz Zaman for Respondents.

            Date of hearing: 14th April, 2014.

JUDGMENT

            CH. MUHAMMAD MASOOD JAHANGIR, J.--- The facts germane for disposal of the instant civil revision are that Ghulam Qadir and Munir Mehfooz respondents Nos.1 and 2 filed a suit for specific performance against Anwar Shah respondent No.3 regarding an oral agreement to sell dated 15-2-1994. The said suit was contested by Anwar Shah respondent No.3 with the assertions that he had no nexus with the disputed property, which was owned by Syed Sultan Shah the present petitioner.

2.         The learned trial Court framed the following issues out of the divergent pleadings of the parties:---

(1)        Whether the plaintiff has no cause of action and locus standi to file this suit? OPD

(2)        Whether the suit is bad for non-joinder of necessary parties? OPD

(3)        Whether one Sultan Shah was in fact owner of the suit-land and the defendant did not have any concern thereof? OPD

(4)        Whether the plaintiffs are entitled to get decree for specific performance of contract as prayed for? OPP

(5)        Relief.

3.         After collecting stock of evidence the suit was decreed by the learned trial Court vide judgment and decree dated 10-2-2001, which was assailed by Anwar Shah respondent No.3 by filing an appeal before the learned lower appellate court, who has dismissed the same vide judgment and decree date 17-1-2002. The respondent No.3 also filed a review application before the learned lower appellate court which was also dismissed vide judgment dated 3-3-2003.

4.         Syed Sultan Shah the present petitioner filed an application under section 12(2), C.P.C. for setting aside of the judgment and decree dated 10-2-2001 passed by the learned trial Court and the judgments and decrees dated 17-1-2002 and 3-3-2003 passed by the learned appellate court whereby review application filed by respondent No.3 was dismissed. The learned lower appellate court dismissed the application filed by petitioner under section 12(2), C.P.C. vide judgment dated 7-7-2005. The petitioner has challenged the said judgment by filing the instant civil revision.

5.         The learned counsel for the petitioner has argued that learned lower appellate court has passed the judgment against law and facts, that without framing of issues and recording of evidence the learned lower appellate court travelled beyond his jurisdiction while dismissing the application under section 12(2), C.P.C., that factual controversy between the petitioner and decree-holder existed and the matter could not be disposed of in a summary manner without making the factual inquiry, that the judgment-debtor/defendant of the main suit for specific performance had disclosed the facts by filing written statement that disputed property was owned by the petitioner then it was incumbent upon the decree-holder/plaintiff as well as the learned trial Court to have impleaded the petitioner in the said suit, that in the light of written statement the learned trial Court also framed a specific Issue No.3 in this regard but even then the petitioner was not impleaded in the said proceedings, that the learned lower appellate court dismissed the application under section 12(2), C.P.C. filed by the petitioner on the ground of limitation, which was mixed question of law and fact and that the learned lower appellate court exercised its jurisdiction in an illegal manner and committed material irregularity. He lastly prayed for the acceptance of the instant civil revision, setting aside of the impugned judgment passed by the learned lower appellate court and further that the matter be remanded to the learned lower appellate court with a direction to decide the same afresh after striking issues and collecting evidence of the parties.

6.         Conversely the learned counsel for the respondents has supported the impugned judgment and stated that that the question of limitation is not only important factor rather it affected roots of the case and the learned lower appellate court has rightly dismissed the application under section 12(2), C.P.C. filed by the petitioner. He placed his reliance on the judgments reported as Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through Legal Heirs (PLD 2006 Lahore 371), Muhammad Ilyas v. Muhammad Bashir (PLD 2006 Lahore 365), Mst. Rasool Bibi through Legal Heirs v. Additional District Judge, Sialkot and another (PLD 2006 Lahore 181) and Faizum alias Toor v. Nader Khan and others (2006 SCMR 1831) and lastly prayed for the dismissal of the instant civil revision.

7.         Arguments heard record perused.

8.         The original plaint of the suit for specific performance of an oral agreement filed by the respondents Nos.1 and 2 against Anwar Shah respondent No.3 is, available at pages 7 to 11. The contesting written statement filed by respondent No.3/defendant of the suit is also appended with the instant civil revision at page 14. The perusal thereof clearly reveals that respondent No.3 being defendant took a clear stance that disputed property was owned by Sultan Shah. The learned trial Court in the light of above said objection of the respondent No.3 framed a specific Issue No.3 in this regard, which is reproduced in para-1 ante. The said issue is also narrated supra. Thereafter the learned trial Court decided the said issue along with Issue No.4 in favour of the plaintiffs/respondents Nos.1 and 2 vide judgment and decree dated 10-2-2001. A perusal of the judgment of the learned trial Court does reflect that while deciding Issue No.3 along with Issue No.4 the question, of ownership of disputed property in favour of Sultan Shah the present petitioner has been discussed in detail by the learned trial Court but despite the fact that respondent No.3 being defendant specifically pleaded in his written statement that Sultan Shah the present petitioner was not impleaded as party by respondent No.1/plaintiff of the said suit nor the learned trial Court took care of said fact. The appeal filed by the respondent No.3 has also been dismissed by the learned lower appellate court without taking into consideration the said aspect. The assertion of the petitioner that despite the fact that it was disclosed before the learned trial Court that the disputed property was owned by the petitioner, who was to be impleaded as party, but the impugned judgments were rendered by both the courts below without any jurisdiction has substance and force. The petitioner asserted in his petition under section 12(2), C.P.C. that the proceedings of the suit, appeal and reviews application were neither in his knowledge nor any intimation/notice had been served upon him and the proceedings conducted in the said matters was kept secret from him, which came into his knowledge two days prior to the institution of the application under section 12(2), C.P.C. The said assertion has been denied by the respondent in his written statement merely while replying that the same was wrong and baseless, but it has not been negated by the respondent/decree-holder in clear words. No doubt the question of limitation is pivotal and important fact to decide the lis, but where the allegations of fraud and collusiveness are raised by a petitioner in his petition under section 12(2), C.P.C. then a proper course for learned lower appellate court was to frame the issues, collect the evidence and then to decide the matter.

9.         The averments contained in the petition are presumed to be correct unless it is rebutted and when allegation of fraud was also averred therein, the matter could not have been resolved without record of evidence. The petitioner has categorically stated in the petition that disputed judgments were based upon fraud and collusiveness, which came into their knowledge two days prior to the institution of their petition under section 12(2), C.P.C. It is a well-settled principle of law that limitation is a mixed question of law and fact and proper appreciation of evidence was the only requirement for the decision of adjudication of the question raised in the application submitted by the petitioner. The petition under section 12(2), C.P.C. filed by the petitioner also prima facie discloses cause of action against the respondent and establishes that it was asserted before the learned trial Court that disputed property was belonging to the petitioner, therefore, in his absentia no valid judgment and decree could be passed.

10.       As the patent wrong is found in the impugned judgments passed by the learned trial Court as well as of the learned lower appellate court which went to the roots of the case, the petition filed by the petitioner under section 12(2), C.P.C. could not be decided summarily. As the petitioner has alleged fraud and collusiveness in his petition and the fraud vitiates all solemn acts and any instrument, deed, or judgment or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any court of law before whom they are produced in any proceedings. Question of fraud is never purely a question of law and same can be thrashed after recording of evidence. In this regard reliance can be placed upon the judgment reported as Mst. Zulaikhan Bibi through L.Rs. and others v. Mst. Roshan Jan and others (2011 SCMR 986). The operative paragraphs Nos.12 to 14 thereof being relevant are reproduced hereunder:---

"12. Fraud defined.--- Fraud means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract.

(1)        the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

(2)        the active concealment of a fact by one having knowledge or belief of the fact;

(3)        a promise made without any intention of performing it

(4)        any other act fitted to deceive;

(5)        any such act or omissioin as the law specially declares to be fraudulent.

13.       It is by now a settled proposition of law that fraud vitiates all proceedings. In Muhammad Younas Khan v. Government of N.-W.F.P. (1993 SCMR 618) this court observed as follows:---

            "There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. Fraud is defined in section 17 of the Contract Act as the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent. It was observed by this Court in the case of Abdul Wahid v. Mst. Zamrut (PLD 1967 SC 153) that a question of a fraud is never purely a question of law as it involves firstly a finding with regard to fact, that is to say conduct on the part of the party alleged to consider whether such proved conduct amounts in the circumstances of the case of fraud."

14.       In the suit filed on 22-1-1946 in which the ex parte judgment and decree was obtained, that fact was concealed that the suit-land was a State land and no transfer could be effected without permission of the competent authority under section 19 of the Colonization of Government Lands (Punjab) Act and Provincial Government or Collector were not impleaded as party. Having obtained the ex parte decree it was kept secret for years i.e. till the filing of the instant suit on 3-7-1972. The exact address of respondent/defendant (donee) Abbas Khan was withheld for reasons other than bona fide and he was wrongly shown to be residing at Loyalpur. It was further concealed that the defendant/donee in the said suit had been gifted the land in terms of Mutation No.10 dated 18-4-1942 (Exh.P1). These circumstances indicate that the facts were concealed by the predecessor-in-interest of the appellant/plaintiff Niaz Bibi having full knowledge of the actual facts and with a view to deceive not only the court but also respondent/defendants' predecessor-in-interest i.e. donee Abbas Khan. The judgment procured pursuant through such acts of concealment is fraudulent and would be hit by section 17 of the Contract Act. Fourth; it is in evidence that the appellant/plaintiffs had made abortive attempts to challenge the ownership of Abbas Khan, predecessor-in-interest of the respondent/plaintiffs as the learned Additional District Judge in para 13 of the judgment had specifically referred to it that they had earlier on filed a civil suit which was withdrawn on 4-9-1963. This finding remained unchallenged by the appellant/plaintiffs in the body of the civil revision before the High Court which we have examined as part of the record, fifth; the constructive possession of the predecessor-in-interest of the respondents namely Abbas Khan is evident from the testimony of D. W.2 Manzoor ul Haq, his son, who is Numberdar of the area. He stated that the suit-land was given to Hawas Khan and Khawas Khan in the year 1949/1950 on share produce basis and they used to give the share till 1969 when his father Abbas Khan was arrested in a criminal case and thereafter Khawas and Khawas stopped giving them the share produce. When his father was acquitted in 1972 by the High Court and asked for his share in produce, they filed the suit, sixth; it is not disputed that Abbas Khan remained Numberdar all along and he was succeeded by Manzoorul Haq his son who appeared as D.W.2. This is yet another circumstance which vindicates the case of respondent/ defendants."

11.       The contention of the learned counsel for the respondent that disputed judgment and decree came into the knowledge of the petitioner on 29-4-1999 when presence of Tassaduq Hussain the real son of petitioner was marked during the proceedings of the suit by the learned trial Court is without any force. The perusal of file reveals that no doubt on 29-4-1999 the learned trial Court observed the presence of Tassaduq Hussains but it is not reflected by said order that he was son of present petitioner nor the knowledge of son of petitioner can be assumed the knowledge of the petitioner.

12.       Both the courts below have taken a wrong inference from the said interim order, which is not based on reasoning and the instant decree was passed in the suit for specific performance filed by the respondents on the basis of an oral agreement, which does not bear any mention of title document that the disputed property was owned by the respondent No.3/defendant of the said suit.

13.       The case-law cited by the learned counsel for the respondents runs on different footings. In Rasool Bibi's case the matter was decided after framing of issues and recording of evidence. Whereas in Mian Amin's, case the matter was again decided by courts after framing of issue regarding limitation and recording of evidence. In the said case the issue No.2 was: Whether the suit was in time? OPP. So the judgment in the said case is also not helpful to the case of the respondents. Then in Muhammad Ilyas's case the judgment was passed in a suit for pre-emption by this Court while taking into consideration sections 30 and 31 of Punjab Pre-emption Act 1991 and in Faizum alias Toor's case the said matter was also decided after full dressed trial and the august Supreme Court of Pakistan observed, that "in fact the petitioner was seeking extension of limitation under section 18 of Limitation Act on the ground of fraud".

14.       Sequel of the above discussion is that the impugned judgment passed by the learned lower appellate court whereby application under section 12(2) filed by the petitioner was dismissed summarily is without lawful authority having been passed in sheer violation of law. The civil revision is allowed, and the impugned judgment dated 7-7-2005 passed by the learned lower appellate court is hereby set aside and the application filed by the petitioner under section 12(2), C.P.C. shall be deemed to be pending before the learned lower appellate court who will decide the same after framing of issues and collecting evidence afresh in accordance with law. He is further directed to decide the same within a period of four months positively. The parties are directed to appear before the learned District Judge, Gujrat on 5-5-2014 who may hear the matter himself or entrust the same to the court of competent jurisdiction.

MWA/S-57/L                                                                                      Revision allowed.