2014 Y L R 66

2014 Y L R 66

[Sindh]

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

Messrs QAMDEEN BROTHERS (PVT.) LTD. through Director and 3 others---Appellants

Versus

Mrs. SHIRLEY AMIRUDDIN VALIKA and 3 others---Respondents

H.C.A. No.114 of 2008 and C.M.As. Nos.446 and 447 of 2010, decided on 4th September, 2013.

Civil Procedure Code (V of 1908)---

----S.12(2) & O.XXIII, R. 3---Application under S.12(2), C.P.C. for setting aside of consent order---Scope of S.12(2), C.P.C.---Applicant had not challenged any misrepresentation or fraud on the part of appellants which could justify filing of the application---Provisions of section 12(2) Civil Procedure Code, 1908 could not be equated with the provisions of review or revision and the parties could not be allowed to delay the final adjudication of the disputes by filing such frivolous applications and that too against the consent order at a belated stage---Controversy which had attained finality, and specially with consent order of the parties could not be re-opened on the false pretext of fraud and misrepresentation by either party---Once consent order had been passed by a court, the parties could not resile from it without cogent and valid reasons---Any indulgence at such stage of the proceedings would amount  to frustrate the implementation of consent order, which otherwise had attained finality in law---Application was dismissed.

            Haseeb Jamali for Appellants.

            Arshad Iqbal for Respondents.

ORDER

    MUHAMMAD JUNAID GHAFFAR, J.---Through this order, we intend to dispose of C.M.As. Nos.446 and 447 of 2010 filed under Order XXXIX, Rules 1 and 2 and section 12(2), C.P.C. respectively by the respondents. We will take up C.M.A. No. 447 of 2010 filed under section 12(2), C.P.C., which would ultimately decide the fate of C.M.A. No.446 of 2010 filed under Order XXXIX, Rules 1 and 2 C.P.C.

2.         Briefly stated the facts are that this High Court Appeal was disposed of by a consent order dated 9-9-2008 which was filed against an order dated 11-4-2008 passed in JM No. 28-31 of 2006. The order dated 9-9-2008 is reproduced as under:--

            "Appellant being aggrieved by the order dated 11-4-2008  passed in C.M.A. No. 861 of 2006 in JM No. 30 of 2006 by a learned Single Judge of this court has preferred this High Court Appeal. By consent, this appeal is disposed of in following terms:--

(1)        That the commissioner/valuer appointed by the court will determine value of property bearing No. 3/2/2 SR-5, Altaf Hussain Road, Karachi and property bearing No. 254/A, Sarwar Shaheed Road, Karachi on as is where is basis.

(2)        That the value of the properties bearing Nos. 64/A and 65/A, New Queens Road, Lalazar, Karachi, will be determined by the valuer on the basis of vacant possession. The impugned order is modified to this extent only. As regards the entitlement of the parties to purchase the property on the basis of valuation given by the valuer, the same will be decided after the receipt of the report by the learned Single Judge."

3.         The dispute between the appellants and the respondents was in respect of four different properties for which four different JMs were filed by the present respondents under section 305 of the Companies Ordinance, 1984. Out of these four properties, the Property bearing No. 254 R.A. Lines, Sarwar Shaheed Road, Karachi, is relevant in the instant appeal. After passing of the consent order, the present respondents have filed application under section 12(2) read with section 151, C.P.C., whereby they have sought setting aside of the order dated 9-9-2008 passed in the subject appeal. The precise grievance of the respondents is, that the valuation of the subject property in dispute in this appeal should not be done on 'as is where is basis' but on the basis of "vacant possession". It is pertinent to note that such application for setting-aside the order was filed on 1-4-2010 i.e., after more than 19 months of passing of the order dated 9-9-2008. The respondents have stated in the affidavit filed along with this application that the subject property involved and owned by the appellant No. 1 was in the possession of a tenant not being a shareholder which fact was contradictory to the statement and facts mentioned in JM 30 of 2006. It has been further stated that on the basis of said statement, a consent order was passed in respect of this property that it should be valued on 'as is where is basis'. In para 6 of the affidavit the respondents have stated that during the course of inspection it was revealed that appellant No. 2 was in fact the tenant of Plot No. 254, R.A. Lines, Sarwar Shaheed Road, Karachi. On the basis of these averments made in the affidavit, the respondents have prayed that  the subject property should be valued on "vacant possession basis" and they have further prayed to  modify  the  order  dated  9-9-2008 to the extent that the said property be valued accordingly.

4.         The appellants have filed their counter-affidavit to this application under section 12(2), C.P.C. and have denied the contents of the application and the affidavit filed by the respondents.  The contention of the appellant is that the order dated 9-9-2008 was a consent order, which is clear, unambiguous and so speaks for itself. It has been further stated that the respondents have failed to point out either any mis-statement made by the appellants, or the fraud played on the court. On the basis of these submissions, the appellants have prayed for dismissal of the listed application.

5.         We have heard the learned counsel for the respective parties and perused the record available before us. The learned counsel for the respondents argued that the valuation of the subject property should have been done on the basis of "vacant possession" and not on 'as is where is basis'. However, when asked as to how this application under section 12(2) is maintainable against a consent order, he was unable to satisfactorily respond to this query. On the other hand, learned counsel for the appellants vehemently contested the listed application, and in fact informed this court that on the basis of the consent order dated 9-9-2008 an inspection has already been carried out on 'as is where is basis' and therefore, subject application which has been filed after a lapse of more than 19 months is just to delay the proceedings going on in the JM.

6.         On perusal of the record, it transpires that the order dated 9-9-2008 was a consent order passed in the presence of the learned counsel for the respondents and very specifically, the said order has dealt with four different properties in dispute between the parties. This court vide said order, appointed Commissioner for valuation of two properties on 'as is where is basis', out of which one Property bearing No. 254 R.A. Lines, Sarwar Shaheed Road, Karachi, is in dispute in the present appeal and valuation of the other two properties was directed to be done on the basis of "vacant possession". Therefore, when this order was being passed, the learned counsel for the respondents was well aware of the contents of the said order. It is also pertinent to note that the respondents chose not to prefer any further appeal against the order dated 9-9-2008, nor moved any review application within time which could have been heard and decided by the same bench preferably in terms of Order XLVII, Rule (5), C.P.C., waited for a period of more than 19 months to file this application under section 12(2), C.P.C. It is also noted that the application was filed through same Advocate who was present at the time of passing of the consent order dated 9-9-2008. Whereas, no reason whatsoever has been given by the learned counsel for  the respondents regarding consent to the order dated 9-9-2008, nor the respondent in her affidavit has alleged that the counsel representing the respondents was not authorized to give consent on behalf of the respondents. On the contrary, some  fact  with  regard  to  the  possession  of  the  subject  property  has  been  disputed through listed application on the basis of subsequent report regarding possession.

7.         From perusal of the contents of the application and the affidavit filed by the respondent it has been observed that respondent has not alleged any mis-representation or fraud on the part of appellants which could justify filing of the application under section 12(2), C.P.C. It is a settled principle of law that the provision of section 12(2), C.P.C. cannot be equated with the provision of review or revision and the parties cannot be allowed to delay the final adjudication of the disputes by filing such frivolous applications and that too against a consent order at a belated stage. It is also a settled law that controversy which has attained finality, and specially in this case, with consent order of the parties cannot be re-opened on the false pretext of fraud and misrepresentation by either party. Once consent order has been passed by a court, the parties cannot resile from it without cogent and valid reasons, which in the instant case are lacking.  Any indulgence at this stage of the proceedings would amount to frustrate the implementation of a consent order, which otherwise, has attained finality in law. Accordingly, the listed application under section 12(2), C.P.C.  was dismissed vide our short order dated  4-9-2013, along with C.M.A. No. 446 of 2010 filed under Order XXXIX, Rules 1 and 2, C.P.C., and these are the reasons for such short order.

JJK/Q-7/K                                                                               Application dismissed.