2015 C L C 1157

2015 C L C 1157

[Sindh]

Before Aziz-ur-Rehman, J

SARDAR AHMED ABBASI----Applicant

versus

MUHAMMAD ZAMAN ABBASI and 4 others----Respondents

Judicial Miscellaneous No.57 of 2010 in Suit No.1333 of 2007, decided on 23rd April, 2014.

(a) Constitution of Pakistan---

----Art. 10-A---Right to fair trial and due process of law---Scope---Provisions of Art.10-A of the Constitution mandate that 'civil rights' and 'obligations' be adjudicated upon through a 'fair trial' and 'due process' of law---'Fair trial' and 'due process' of law besides being fundamental right, not only cover 'substantive' but procedural 'due process' as well.

            Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

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

----S. 12(2)---Application under S.12(2), C.P.C.---Procedure---Scope---Judgment, decree or order, setting aside of---Procedure---For determination of application under S.12(2), C.P.C., no procedure has been provided---Court is not under any obligation to frame issues, record evidence of parties or otherwise follow prescribed procedure as being necessary for a decision in suit---Keeping in view illegalities leveled in application under S.12(2), C.P.C., Court in its own discretion can adopt any mode of procedure for decision of application.

            Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 and Zafarullah etc. v. Dost Muhammad and others PLD 1984 Lah. 396 rel.

(c) Fraud---

----Proof---Fraud vitiates the most solemn proceedings---Fraud cannot be proved directly, it has to be inferred from surrounding circumstances plus conduct of parties to proceedings.

            Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221; Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134; Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184 and Munir Ahmad Khan v. Sameeullah Khan 1986 CLC 2655 rel.

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

----S. 12(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Fraud and misrepresentation---Judgment and decree, setting aside of---Defendant sought setting aside of ex parte judgment and decree passed against him on the plea of fraud and misrepresentation---Validity---'Misrepresentation' and 'fraud' during proceedings was apparent from the record---Defendant and plaintiff were brothers and correct address of defendant was well in the knowledge of plaintiff---With a view to create confusion and to procure 'ex parte decree', native district of defendant was mixed up with another district and summons were got issued to him through District Judge of that another district instead of his native district---'Ex parte judgment and decree' were obtained by playing 'misrepresentation' and 'fraud' and the same were liable to be set aside---Any aggrieved person, without filing separate suit could challenge the same on the ground of 'fraud', 'misrepresentation' or 'want of jurisdiction' by simply filing application under S.12(2), C.P.C.---Requisite ingredients of S.12(2), C.P.C., had been fully established by applicant and application under S.12(2), C.P.C., was competent in law as well maintainable---High Court set aside ex parte judgment and decree passed in favour of plaintiff and against defendant---Application was allowed in circumstances.

            Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166; Mehr Din through legal heirs v. Azizan and another 1994 SCMR 1110; Messrs Al-Ahmed (Pvt.) Ltd. v. Anjuman Falah-O-Behbood, Hazara Mughal Goth and others 2009 CLC 299; Muhammad Ramzan v. Muhammad Akbar Bhatti 2013 CLC 1561; Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through President and 2 others 2012 CLC 507; Gulfam and others v. Bibi Qudsia Begum and others 2003 CLC 1183; Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; Hakimuddin v. Faiz Bux 2007 SCMR 874; Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others PLD 1975 Kar. 598; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382 and Boman Abadan Irani and others v. Jehangir J. Mobed and others PLD 1967 Kar. 449 ref.

            Qazi Khalid Ali and Qazi Asif Ali for Applicant.

            Mustafa Lakhani for Respondent No.1.

            Date of hearing: 1st April, 2014.

ORDER

            AZIZ-UR-REHMAN, J.--- By means of this application under section 12(2) read with section 151, C.P.C. (J.M. No.57 of 2010), the applicant (means J.D. No.1-defendant No.1) has approached this Court with a prayer for setting aside of the ex parte Judgment and Decree dated 18-2-2010 passed in Suit No.1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others), mainly on the ground that the applicant at no stage of proceedings had any knowledge about the institution of the suit and passing of such Judgment and Decree in favour of the respondent No.1 (means Decree Holder-plaintiff), and the same have been obtained through 'fraud' and 'misrepresentation' committed by respondent No.1 upon the Court as the applicant was never served with the summons of the above suit or otherwise, had any knowledge about the institution of the suit.

2.         Brief facts leading to the filing of above application under section 12(2), C.P.C. read with section 151, C.P.C. (J.M. No.57 of 2010) are as follows:---

3.         That the respondent No.1 is an advocate by profession and registered on the role of the advocates of High Court.

4.         That the respondent No.1 and the applicant (means Vendees) entered into a sale agreement dated 19-3-1988 with one Mr. Hayatuddin son of Fayazuddin (means Vendor) for purchase of a double storey bungalow constructed on Plot No.70-L, situated in Block No.2 of Pakistan Employees Cooperative Housing Society, Karachi (means 'subject property') for a total sale consideration of Rs.8,50,000. (Rupees Eight Lacs Fifty Thousand only). Per assertions, at the time of executing of the aforesaid sale agreement, a sum of Rs.25,000 (Rupees Twenty Five Thousand only) as 'advance money' was paid which was not only acknowledged by the vendor but he also issued a proper receipt thereof on 19-3-1988.

5.         That the vendor/owner after entering into the sale agreement for the sale of the 'subject property' applied to the Ministry of Works for permission to sale/transfer the 'subject property' to the vendees. The Ministry of Works (respondent No.3-Defendant No.3) also granted such permission.

6.         Per averments, the 'subject property' was in possession of two tenants. The 'ground floor' of the 'subject property' was in possession and in occupation of the family of Syed Zafarul Islam and 'first floor' of the 'subject property' was in possession and in occupation of one Hamid Ali. At the time of sale agreement of 19th March, 1988, the ejectment proceedings initiated by the vendor/owner against the said tenants were still pending before the competent court of law.

7.         Subsequently, in view of the litigation, it was mutually agreed and decided to complete the sale transaction without obtaining the actual 'physical possession' of the 'subject property', however, as mutually agreed, by reducing the sale price from Rs.8,50,000 (Rupees Eight Lacs Fifty thousand only) to Rs.5,20,000 (Rupees Five Lac Twenty thousand only). As such, the sale deed was prepared and presented in the office of the Sub-Registrar T. Division-XI, Karachi, for its registration on 6th February, 1989 upon full payment of the agreed sale consideration to the vendor. The Sale Deed dated 6-2-1989 was not duly signed and executed but also registered before T. Division--XI Karachi.

8.         No doubt, prior to registration of the aforesaid sale-deed of 6th February, and after entering into the said sale agreement of 19-3-1989, a 'Public Notice' in the local Newspaper daily 'Nawai-e-Waqt' dated 8-6-1988 was also got published whereby objections from the 'general public' in respect of the 'subject property' were also invited.

9.         As a pre-cautionary measure and keeping in view the litigation going on with the tenants, the Sale-Deed dated 6-2-989 was executed and registered in the joint names of the respondent No.1 (Muhammad Zaman Abbassi) and the applicant (Sardar Ahmed Abbassi) as co-owners/vendees.

10.       Eventually, the physical possession of the 'subject property' was got vacated from the tenants and since then, per assertion, the possession of the 'subject property' is with respondent No.1. Per averments, at the time of execution of the sale deed dated 6-2-1989, the Applicant had made a 'promise' with the respondent No.1 for subsequent surrender of his 50% share in the 'subject property'.

11.       Upon executing of the sale-deed dated 6-2-1989 the respondent No.1 thereafter had applied for mutation of the 'subject property' in the office of the respondent No.2 (means J.D. No.2 - PECHS) whereby the respondent No.2 referred the matter for further action to the respondent No.3 (defendant No.3). Per averments, the respondent No.3, of course, raised the objection against the transfer of the 'subject property' (i.e. exclusively in the name of the respondent No.1) as the applicant was also co-owner according to Sale-Deed of 6th February, 1989.

12.       On 15-6-1989, the application of respondent No.1 for transfer of the 'subject property' in his name by PECHS (respondent No.2] was forwarded to the Government of Pakistan, Ministry of Housing and Works (respondent No.3) for issuing 'No Objection Certificate' (in short NOC). Such permission for transfer of 'subject property' in the name of Muhammad Zaman Abbasi (respondent No.1) per assertion, was granted vide Transfer Order No.F.No.1(390)/72-73 LEM dated 7-8-1993. Consequently the 'subject property' was mutated by respondent No.2 vide PECHS Transfer Order No.PECHS/1052/12693 dated 27-9-1993 in favour of respondent No.1.

13.       However, later on, at the pointation of the applicant as being co-owner of the 'subject property' the transfer order in the name of respondent No.1 exclusively, nonetheless, was subsequently/withdrawn by PECHS vide its office order dated 24-8-2007. As a result, the Ministry of Housing and Works while, superseding its earlier NOC, issued fresh 'NO OBJECTION' vide its letter dated 27-11-2007 for transfer of the 'subject property' in the joint names of the applicant and respondent No.1 as being co-owners of the 'subject property' under the registered Sale-Deed of 6th February, 1989.

14.       According to the respondent No.1 against the alleged illegal action of the respondent No.2, a complaint dated 15-9-2007 was lodged to the respondent No.3, by inviting its attention towards the illegal act of the respondent No.2 and thereby a request for issuing directions to the respondent No.2 for not disturbing the existing position of record was also made in respect of the 'subject property' but to no avail. Per averments, the applicant is a benamidar shareholder/ co-owner of the 'subject property' to the extent of 50% share as the entire funds/total sale consideration of the 'subject property' was arranged by the respondent No.1 through sale of his movable and immovable properties.

15.       According to respondent No.1, the applicant as being the younger brother of the respondent No.1, was managing the affairs of the his agricultural land situated at Deh Bohla Khalhora under the Survey Nos.841, 842, 733, 770/2, 767/1, 869, 870, 871, 868 and in Deh Ghattar Survey Nos.333/1, 333/2, 335 and 328, totaling 33 acres but he neither paid the true agricultural incomes from the above said agricultural lands nor ever rendered the true accounts. The respondent No.1, due to negative attitude of the applicant regarding payment of agricultural income till JANUARY, 2003, was nonetheless compelled to lodge a complaint with D.D.O. Qamber.

16.       Besides, per respondent No.1's version the applicant had also sold the Furgoson Tractor of the respondent No.1, which was purchased by him from Kamdar Akbar Kalhoro. The respondent No.1, per assertion, had also approached the Applicant through some relatives for amicable resolution of the issue between him and the applicant but notwithstanding such efforts, the applicant is still continuing to hold the agricultural lands, income derived therefrom and house/houses at Qambar, which were purchased by respondent No.1 from the pool of the agricultural income from Post Master (the father of Dr. Zubair and Hindo named Matoomal) admeasuring 1000 square yards. All the 'original documents' per assertion of respondent No.1, are in the custody of the applicant. Per respondent No.1's knowledge all the properties referred to hereinabove have been now illegally transferred by applicant in his name.

17.       Further, the case of respondent No.1 is that in the year 2001, the wife of the respondent No.1 got seriously ill as she suffered the brain-haemorrhage and thus was hospitalized. As such, on the ailment of his wife, the respondent No.1 had incurred a lot of money and thus he had fallen in dire need of extra money. Under such circumstances, respondent No.1, once again approached the applicant for his agricultural income but he received no positive response from the applicant. Unfortunately, the wife of the respondent No.1 was eventually passed away and after her death, the respondent No.1, take back the control of his agricultural land 'forcibly' from the applicant but by that time respondent No.1, no doubt, had suffered the losses in the sum of Rs.40,00,000 (Rupees Forty lacs only) at the hands of the applicant. Apart from the above, the applicant had also failed to pay the respondent No.1, the income gained by him from the agricultural land situated at Deh Ghattar under the Survey Nos.333/1, 333/2, 335, 328. Moreover, the Applicant gave possession of 5000 square yards land of village Chundia, illegally to the Directorate Education for school, which per assertion, is belonging to the respondent No.1 as being Chief of Chundia Tribe, inherited, after the death of his father on 17-11-1958, worth of Rs.10 Crores.

18.       Apart from the above, the applicant had also got the possession and charge of the 'flat' of the son-in-law of the respondent No.1 after his death (who expired on 30-10-2008) and presently the applicant is residing therein along with his family. Upon demanding the possession of the said 'flat', the applicant shown his real face, by demanding the possession and charge of his 50% share in the 'subject property'. On such demand of possession of the 'Flat', the applicant has become seriously antagonized.

19.       Hence this suit with the following prayers:---

i.          declare that the plaintiff is the real and ostensible owner of the suit property viz. House No.70-L, Block No.2, PECHS, Karachi having acquired from the previous owner/his client from his own sources, funding and saving and the defendant No.1 is the only benamidar in respect of his 50% share in the suit property.

ii.          after declaration that the plaintiff is the ostensible and real owner to the either suit property cancel the 50% share of the defendant No.1 in the suit property as the benamidar and award the same to the plaintiff by rectifying the sale-deed dated 6-2-1989 and direct the Nazir of this Hon'ble court to get record rectified i.e. entering name of the plaintiff as sole owner in the record of Registrar T-Division XI, Karachi, the defendant No.4.

iii.         declare that the impugned order of the defendant No.2 dated 24-8-2007 is illegal ab-initio void without jurisdiction out of limitation period and order for its cancellation.

iv.         Award mesne profit of Rs.40,00,000 (Rupees Forty Lac only) of the agricultural produce.

v.         Award the declare in favour of the plaintiff amounting to Rs.11 crores causing losses to plaintiff due to his illegal act for illegal occupation of two houses at Qambar and giving 5000 sq. yds. of the plaintiffs inheritance land as the chief of the tribe of village chundia to the District Education Office Qambar situated in Chundia village.

vi.         Restrain the defendants, his agents, assigns, legal heirs claimants and administrative not to create the third party interest in the suit property and not to transfer, alienate, sale, the suit property to the third person or to disturb the record of the defendants Nos.2 and 3 till the final disposal of the above matter.

vii.        Cost of the suit.

viii.       Any other relief and reliefs which this Hon'ble court may deem fit and proper under the circumstances of the case.

20.       The plaint was presented in Court on 10-1-.2007 and thereafter was allotted Suit No.1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others). The address of the applicant (Judgment-debtor No.1-defendant No.1) as given in the title of the plaint reads as follows:---

            'Sardar Ahmed Abbasi son of Late Ghulam Muhammad Abbasi, Muslim, adult and resident of 10 G-13, Maymar Avenue, near Patel Hospital, Gulshan-e-Iqbal No.4, Karachi and 2) Abbasi Mohalla, Qambar Ali Khan, District Qambar Shahdadkot, Larkana Sindh. (underlining is mine)

21.       From the diary sheet of the Additional Registrar (O.S.) dated 10-10-2007 it appears, that process was issued to the defendants for 14-12-2007. Per diary sheet dated 14-12-2007, summons issued to defendants Nos.1 to 5 returned served on defendants Nos.2, 4 and 5. As far as applicant (defendant No.1) and the respondent No.3 are concerned, per the aforesaid diary, no 'report' was received from District Judges Larkana and Islamabad. While, upholding 'service held good' upon respondents Nos.2, 4 and 5 (defendants Nos.2, 4 and 5), summons to the unserved defendant No.1 and defendant No.3 were repeated through DISTRICT JUDGE, LARKANA and Islamabad for 26-2-2008.

22.       According to the Additional Registrar (O.S.) diary of 26-2-2008, inter alia, it was observed as follows:---

1.         …………………………………………………………………………….

2.         Summons not issued to defendants Nos.1 and 3 returned served.--- For written statement by defendants No.1 and 3 four weeks time granted.

3.         Notice of C.M.A. No.8607 of 2007 not issued as cost not paid.

23.       Per diary sheet of Additional Registrar (O.S.) dated 24-4-2008 with regard to defendant No.1, it was observed as follows:---

'2.        For filing of w/s by defendant No.1. No W/S has been filed since 26-2-2008.... 2. Fix in Court for further order on 12-5-2008.

3.         Notice of C.M.A. No.8607 of 2007 not issued as cost not paid. (Emphasis and underlining are mine)

24.       Thereafter, on 12-5-2008 when the case came up before the court the following order was passed:---

            "Mr. Muhammad Khalid advocate holding brief for Mr. Aga Faquir Muhammad advocate is present, whereas none present for defendant No.1 nor any intimation (received). He has not filed written statement since 26-2-2008, as such he is given last chance for filing the written statement.

            On the last date of hearing summons were repeated against the defendants Nos.3 to 5, which have been served but nobody is present for them nor any intimation (received). Service against them stand good.

            Put up for written statement."

25.       Again, when the case came-up before the Court on 13-10-2008 the order passed on the aforesaid date, reads as follows:---

'(1)       It seems that the defendants Nos.1, 3 and 5 are not present nor any intimation has been received on their behalf. They have been given last chance to file written statement since 26-2-2008, service against them is hereby held good. They are proceeded ex-parte. The Plaintiff is directed to file affidavit in ex-parte proof along with original documents if any, within one week. (Emphasis and underlining are mine)

(2)        Deferred.

            Adjourned. Interim order passed earlier shall continue till next date of hearing

26.       Thereafter, on 2-3-2009 when the case came-up before the Court, the learned counsel for the plaintiff made a statement that he has already filed 'AFFIDAVIT-IN-EX PARTE PROOF' in compliance with order dated 13-10-2008 along with original documents and upon such statement the case was straightaway reserved for judgment on 30-3-2009. It is worth to note that the 'AFFIDAVIT-IN-EX PARTE PROOF' is available on record with only a list of 'ORIGINAL DOCUMENTS' with R.K. No.112 of 2008, however, without any endorsement of the concerned clerk. Nonetheless, the Judgment was not announced and the case was consequently fixed in Court on 19-6-2009. The order passed on 16-6-2009 reads as follows:---

            'this matter be fixed for re-hearing on date to be fixed by the office according to roster.'

27.       Importantly, the respondent No.2 had already filed its written statement on 16-1-2008 which, of course, was/is available on record. In view of the written statement of respondent No.2 (J.D. No.2-defendant No.2), the suit was rightly posted for issues/re-hearing by the office. The matter then came-up before the Court on 25-1-2010, on which date, inter alia, it was observed as follows:---

            '...thereafter matter did not finalize and case came up for hearing on 19-6-2009. Today office has inadvertently fixed the matter for hearing of C.M.A. No.8616 of 2007 and Issues, the said suit should be reserved for Judgment as pointed out by learned counsel for the plaintiff. Matter is reserved for Judgment. (underlining is mine).

28.       On 18-2-2010, the Judgment in Suit No.1333 of 2007 was announced, whereby the plaintiffs suit was decreed in terms of prayer clauses (i) to (iv). Being relevant, I would like to reproduce herein the operative part of the Judgment dated 18-2-2010 which reads as follows:---

            "Defendants Nos.1, 3 to 5 were served through summons and service against them held good and they were declared ex parte whereas defendant No.2 has filed written statement wherein it has been stated that when letter of the Ministry was received in their office, the defendant under reply had already received the notice of the instant suit as such the PECHS did not issue any letter to follow up of the letter of the Ministry, neither the letter of the Ministry was forwarded to the concerned parties and the matter was kept in abeyance till decision of this Court in the instant matter. (underlining is mine).

            Hence the suit is Decreed as per prayer clauses (i) to (iv) in favour of the plaintiff. Office is directed to prepare such Decree. The C.M.A. No.8616 of 2007 having become infructuous is disposed of accordingly.'

29.       The application for injunction under Order XXXIX, Rules 1 and 2 read with sections 94, 151, C.P.C. and Rule 76 (O.S.) of Sindh Chief Court Rules (C.M.A. No.8616 of 2007) was 'disposed off as having become infructuous. Resultantly, the status quo order passed on 11-2-2008 stood vacated.

            The 'ex parte Decree' passed on 20-2-2010 was put to execution by the respondent No.1 (Decree Holder-plaintiff) and also therein an application under section 39, C.P.C. for transfer of the Decree to DISTRICT JUDGE QAMBAR was filed. Upon receiving the notice on 14-9-2009, the applicant thus came to know about 'ex parte Decree'. Hence, the instant application under section 12(2), C.P.C. read with section 151, C.P.C. for setting aside the 'ex parte Judgment and Decree' (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others) was filed in this Court on 8-10-2010, inter alia,' on the pleas of 'fraud' and 'misrepresentation'.

31.       The main ground of attack is that the applicant is the actual resident of 'ABBASI MUHALLAH, QAMBER ALI KHAN, DISTRICT QAMBER, AT SHAHDAD KOT' but respondent No.1 by playing 'fraud' and 'misrepresentation' got issued the summons/ notices to the applicant (J.D. No.1-defendant No.1) through 'DISTRICT JUDGE LARKANA' instead of 'DISTRICT JUDGE QAMBER AT SHAHDAD KOT'. As such by committing 'misrepresentation' and 'fraud', the 'ex-parte Decree' was obtained without serving the applicant with summons or any notice whatsoever. The summons issued through DISTRICT JUDGE LARKANA were never served upon the applicant as DISTRICT LARKANA, even to the knowledge of respondent No.1, is absolutely a SEPARATE DISTRICT and does nothing with DISTRICT QAMBER AT SHAHDAD KOT to which the Applicant is belonging.

32.       Upon service, the respondent No.1 in rebuttal to the Judicial Miscellaneous Application under section 12(2), C.P.C. filed a detailed 'counter affidavit' wherein not only the contents of the application under section 12(2), C.P.C. have been denied but also dismissal of the same has been sought by respondent No.1. In the 'counter-affidavit' it has been specifically averred that the judgment and decree both of 18-2-2010 besides validly passed are not liable to be set aside much-less on the assertions made in the application under section 12(2), C.P.C. read with section 151, C.P.C. Per averments of the 'counter-affidavit' no 'fraud' and/or 'misrepresentation' as alleged by the applicant has ever been committed by respondent No.1 in the process of service on the respondent No.1 or otherwise.

33.       In response a detailed 'affidavit-in-rejoinder' has also been filed. In the 'affidavit-in-rejoinder' not only contents of the 'counter affidavit' have been denied forcefully but the contents of the application under section 12(2), C.P.C. have also been reiterated and re-affirmed as true and correct.

34.       On 1-4-2014, when above matter came up before me I heard Mr. Qazi Khalid Ali, learned counsel for the applicant and Mr. Mustafa Lakhani, learned counsel for the respondent No.1 and with their valuable assistance also gone through the record available before me minutely.

35.       Mr. Qazi Khalid Ali, learned counsel for the applicant vehemently contended that from the record it reveals that the Suit No.1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others) was filed on 10-10-2007 before this honourable Court. The process/summons were ordered to be issued to the applicant and respondents No.3 (defendants Nos.1 and 3) for appearance on 14-12-2007 through DISTRICT JUDGES LARKANA AND ISLAMABAD respectively amongst other defendants (respondents Nos.2, 4 and 5). Per diary of the Additional Registrar (O.S.) dated 14-12-2007, the service against respondents Nos.2, 4 and 5 (defendants Nos.2, 4 and 5) were 'held good' and four weeks time was granted for filing of their written statement. No any report was received from the DISTRICT JUDGE, LARKANA about service upon applicant (defendant No.1) and from DISTRICT JUDGE, ISLAMBAD upon respondent No.3 (defendant No.3). Under such circumstances, it was directed to repeat summons to respondents Nos.1 and 3 (defendants Nos.1 and 3), through DISTRICT JUDGES LARKANA AND ISLAMABAD FOR 26-2-2008.

36.       The diary dated 26-2-2008 of Additional Registrar (O.S.) reads as under:---

(a)        W.S. has been filed by defendant No.2.

(b)        No W.S. have been filed by defendants Nos.4 and 5 since 14-12-2007.

(c)        Summons not issued to defendants Nos.1 and 3 returned served.

(d)        Notice of C.M.A. No.8607 of 2007 not issued as cost not paid.

(e)        Fix in Court for ex parte order on 10-3-2008.

(f)         W.S. in four weeks. (Emphasis and underlining are mine).

(g)        Cost in a week.

(h)        Notice for 21-3-2008

37.       Mr. Qazi Khalid Ali, learned counsel for the applicant vehemently contended that the 'Diary Sheet' of Additional Registrar (O.S.), is absolutely silent about receipt of any report from the District Judges, Larkana and Islamabad about service. The order dated 26-2-2008 at Sr. No.'c' above is self-contradictory because on one hand it has mentioned that 'SUMMONS NOT ISSUED to defendants Nos.1 and 3 and on the other hand it has mentioned 'RETURNED SERVED'.

38.       Per Mr. Qazi Khalid Ali, learned counsel for the applicant, it was quite strange that on 10-3-2008, no order in respect of applicant (defendant No.1) was passed, however, summons were ordered to be repeated to the defendants No.3 and 2 to 5 through D.C.O. office. The position of defendants Nos.1 and 3 was same as on 26-2-2008 then question arises why summons could not be repeated to the applicant on 10-3-2008. Per learned counsel such is a glaring example of 'fraud' and 'misrepresentation' on the part of respondent No.1 who then managed the issuance of summons to all other defendants except the applicant (Judgment-debtor No.1-defendant No.1).

39.       Mr. Qazi Khalid Ali, learned counsel for the applicant next contended that on 24-4-2008 the Additional Registrar (O.S.) though recorded his minutes to the effect that no 'written statement' has been filed by applicant since, 26-2-2008 but nothing has been mentioned about the return of service of summons upon the applicant through learned DISTRICT JUDGE LARKANA. On 9-9-2008, the Additional Registrar (O.S.) recorded that as a 'last chance' time was granted on 12-5-2008 to applicant for filing of written statement but applicant failed to file any written statement and consequently the matter was fixed for further orders on 13-10-2008. The applicant and respondents Nos.3 and 5 were declared 'ex parte' without mentioning a single word about the proper service upon applicant. Per learned counsel, the order dated 13-10-2008 besides illegal is uncalled for and thus also liable to be set aside.

40.       Per Mr. Qazi Khalid Ali, the applicant is admittedly a permanent resident of ABBASI MOHALLAH, QAMBAR ALI KHAN, DISTRICT QAMBAR, AT SHAHDAD KOT but the notices/summons were ordered to be served upon applicant through the District Judge Larkana. The respondent No.1, of course, with ulterior motives and by through 'misrepresentation' and 'fraud' mentioned District Larkana instead of District Qambar at Shahdad Kot and as such two independent Districts were mixed up together apparently with a view to manage things fraudulently. As such, the summons got issued to District Judge Larkana instead of District Judge Qambar. Even from the record, it is evident that the applicant had not received any notice/summon in the above matter directly or indirectly. No any report regarding service of the summons/notice through District Judge Larkana is available on record. Such factual position, no doubt, confirms the diary of Additional Registrar (O.S.) dated 26-2-2008 which says summons not issued to the defendants Nos.1 and 3 and belies the words 'returned served'.

41.       Mr. Qazi Khalid Ali, learned counsel for the applicant also urged that in order to procure an 'Ex parte Decree' against applicant the wrong address (i.e. G-1/3, Main Avenue, Gulshan-e-Iqbal, Karachi) of the applicant was also mentioned in the title of the plaint though respondent No.1 was fully aware of the fact that the applicant is not residing in Karachi. The respondent No.1, with the connivance of the bailiff in a calculated manner and through 'misrepresentation' got shown the copy of notice of C.M.A. No.8616 of 2007 as received on 13-3-2008. The Applicant's son viz Israr Abbasi has never received any notice of C.M.A. No.8616 of 2007 on 13-3-2008. The alleged signature of the applicant's son on the notice of C.M.A. No.8616 of 2007 besides forged is fabricated hence denied specifically.

42.       Per Mr. Qazi Khalid Ali, the applicant and respondents Nos.3, 4 and 5 were declared 'ex parte' on 14-10-2008 without due compliance of mandatory provisions of law as envisage under Order V, C.P.C. According to Mr. Qazi Khalid Ali, neither any report was received from the DISTRICT JUDGE LARKANA nor any serious efforts otherwise were made for serving the applicant with summons. No application for substituted service was ever filed by the respondent No.1. Service upon the Applicant was illegally 'held good' on 13-10-2008, of course, by way of 'misrepresentation' and 'fraud'. No serious efforts were ever made by respondent No.1 for effecting service upon the applicant inter alia by way of substituted service.

43.       Mr. Qazi Khalid Ali, also argued that the applicant's defence was 'struck off' erroneously and as such was declared 'ex parte' without any proof of service. Per learned counsel, technicalities should not be a hindrance in the way of justice or to say otherwise technicalities and unfair due process would not to be allowed to defeat the ends of justice particularly after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 (i.e. through 18th Amndt). Under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, a 'fair trial' and 'due process' has now become a fundamental right of every litigant. Mr. Qazi Khalid Ali argued forcefully, that this court has ample power and jurisdiction to set aside the 'ex-parte Judgment and Decree' both dated 18-2-2010 under the instant application under section 12(2), C.P.C. read with section 151, C.P.C. as the same have been obtained by practicing 'misrepresentation' and 'fraud' upon the court. To enjoy the protection of law and to be treated in accordance with law, per Mr. Qazi Khalid, is the inalienable right of every Pakistani. No action detrimental to the life, liberty, body, reputation or property of any person is permissible under the Constitution of Islamic Republic of Pakistan, 1973 save and except in accordance with law. Per learned counsel, all citizens of Pakistan are entitled to have equal treatment and protection of law under the Constitution of Islamic Republic of Pakistan, 1973.

44.       Mr. Qazi Khalid Ali, learned counsel for the applicant also argued that the applicant is a 'co-sharer' to the extent of 50% share in double storeys bungalow constructed on Plot No.70-L, situated in Block-2, Pakistan Employees Cooperative Housing Society, Karachi, since 1988 when a registered Sale-Deed of 6th February, 1989 in the office of Sub-Registrar, 'T' Division-XI, Karachi was registered in the joint names of the applicant and respondent No.1. Per learned counsel, the 'subject property' has rightly been mutated in the name of the applicant and respondent No.1 in the record of rights.

45.       In support of his contention Mr. Qazi Khali Ali, learned counsel for the applicant has placed reliance on the following case-laws :---

(a)        Abdul Razzaq v. Muhammad Islam and 3 others (1999 SCMR 1714)

(b)        Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation (2002 CLC 166).

(c)        Mehr Din through legal heirs v. Azizan and another (1994 SCMR 1110)

(d)        Messrs Al-Ahmed (Pvt.) Ltd. v. Anjuman Falah-O-Behbood, Hazara Mughal Goth and others (2009 CLC 299)

(e)        Muhammad Ramzan v. Muhammad Akbar Bhatti (2013 CLC 1561).

46.       In the case of Abdul Razzaq v. Muhammad Islam and 3 others (1999 SCMR 1714) regarding framing of issues and leading of evidence in application under section 12(2), C.P.C. it was observed as under:---

            "7....It may, however, be observed that framing of issues and recording of evidence in an application under section 12(2), C.P.C., depends upon the facts and circumstances of each case."

47.       Similarly in the case of Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation (2002 CLC 166) on the aforesaid aspect the relevant observations read as follows:---

            "...... but such framing of issues and recording of evidence for contesting the application under section 12(2), C.P.C. was dependent upon the facts and circumstances of each case. The above observations relied upon by Mr. Khalid Anwar clearly support his contention that it is not incumbent upon the trial Court to lead evidence and provide opportunity to the parties to lead evidence and such action had to be resorted to on the basis of the facts and circumstances of each case. (Underlining is mine)."

48.       On the aspect of 'fraud' and 'misrepresentation' in procuring decree by means of practicing 'fraud' and 'misrepresentation' in the service of summons and keeping the pendency of suit concealed against the applicant, Mr. Qazi Khalid Ali, placed reliance on the case of Mehr Din through Legal Heirs v. Azizan and another (1994 SCMR 1110) wherein it was observed as under:---

            ".…... The sum and substance of the petition is that the decree holder practised fraud in the service of summons and kept the pendency of the suit against the respondents concealed from them by fraud and misrepresentation. The copies of the summons placed on the file reveal that proper procedure was not observed in effecting service upon the respondents who were admittedly Pardanashin ladies and special care had to be taken to inform them of the filing of the suit. The report on the first summons show that the respondents informed the process-server that in the absence of their attorney they cannot sign or thumb-impress the summons while at the time of visit of the process server for the second time for effecting service, the respondents were not present in their house. No effort was made to personally serve the respondents in the presence of their close relatives. The learned High Court has exhaustively incorporated the relevant provisions of C.P.C. pertaining to service on the parties which have not been complied with and the High Court justifiably felt inclined to annul the ex parte decree against the ladies/respondents and ordering de novo trial... (Underlining is mine).

49.       On the meaning of 'fraud' and `misrepresentation' in the circumstances of the case, Mr. Qazi Khalid cited the case of Messrs Al-Ahmed (Pvt.) Ltd v. Anjuman Falah-O-Behbood, Hazara Mughal Goth and others (2009 CLC 299) wherein the meaning of 'fraud' and 'misrepresentation' was highlighted/examined as follows:---

"13.      ...In K.J. Aiyar's Judicial Dictionary 13th Edition 2001 at page 430, the word "fraud" has been defined which reads as under:---

            "According to Halsbury's Laws of England, a representation is deemed to have been false, and, therefore, a misrepresentation, if it was at the material date false in substance and, in fact, section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another.

            From dictionary meaning or even otherwise, fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the represented by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. But fraud in public law is not the same as fraud in private law. Nor can the ingredients which establish fraud in commercial transaction can be of assistance in determining fraud in administrative law. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provisions of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shade. It arises from the deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or Tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. That is misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which power can be, exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. There is no fraud if what a person honestly believed to be true turned out to be false."

14.       In Webster's Third New International Dictionary, fraud in equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black Law Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right, a false representation of matter of fact whether by words or by conduct, by false or misleading allegations or by concealment of that, which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. So for definition of misrepresentation is concerned, misrepresentation has been defined by Black Law dictionary VIth volume 1990 Edition at Page 1001, as "Any manifestation by words or other conduct by one person to another that, under the circumstances amounts to an assertion not in accordance with facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead". (Underlining is mine).

50.       Conversely, Mr. Mustafa Lakhani, learned counsel for respondent No.1 forcefully argued that respondents Nos.2, 4 and 5 were no doubt served properly. Learned counsel thus placed reliance on the diary sheet of Additional Registrar (O.S.) dated 14-12-2007 whereunder respondents Nos.2, 4 and 5 were duly served. On 14-12-2007 service upon them was also held good. However, on account of non-availability of reports from the District Judges Larkana and Islamabad regarding service upon the applicant and respondent No.3 respectively summons for 26-2-2008 were repeated to them through District Judges Larkana and Islamabad.

            Mr. Mustafa Lakhani, argued in vehemence that report regarding service upon respondent No.1 was though received from District Judge Larkana/District Judge Qambar at Shahdad Kot, but it has been seemingly removed from the record of court's file (i.e. Suit File No.1333 of 2007). Per diary of 26-2-2008, cost was not paid by respondent No.1, however, such omission was only in respect of C.M.A. No.8607 of 2007. Notice of C.M.A. No.8607 of 2007 was thus repeated on 26-2-2008 to the respondent No.1 for 21-3-2008.

52.       Per Mr. Mustafa Lakhani's contentions, notice of C.M.A. No.8616 of 2007 (an application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C.) was served upon the son of the applicant on 13-3-2008 at Karachi address (i.e. G-1/3, Maymar Avenue, near Patel Hospital, Gulshan-e-Iqbal No.4, Karachi) but despite service no 'counter affidavit' and/or 'written statement' on behalf of the applicant (Judgment-debtor No.l-defendant No.1) was filed. According Mr. Mustafa Lakhani, learned counsel for respondent No.1, all the requirements of law as envisaged under Order V, C.P.C., were fully complied with by respondent No.1 as far as service against the applicant is concerned.

53.       Notwithstanding filing of written statement by respondent No.2 (PECHS), and pendency of the injunction application bearing C.M.A. No.8616 of 2007, per Mr. Mustafa Lakhani, learned counsel for respondent No.1, the case was wrongly fixed on 2-3-2009 for hearing of C.M.A. No.8616 of 2007 and framing of issues instead of fixing the same for arguments/final disposal. As such when the court was apprised about the filing of 'AFFIDAVIT-IN-EX PARTE PROOF', then Judgment on 30-3-2009 was reserved. Nevertheless, on 30-3-2009 the judgment was not announced and again thereafter the case was fixed for hearing of C.M.A. No.8616 of 2007 and issues on 19-6-2009. On 19-6-2009 the matter was ordered to be fixed for re-hearing on a date to be fixed by the office according to roster. On 25-1-2010, per respondent No.l's request the suit was again reserved for judgment. Per respondent No.1's contention, the judgment and decree so passed on 18-2-2010 do not suffer from any illegality and/or any other lacunas.

54.       Mr. Mustafa Lakhani, learned counsel for respondent No.1 argued that there is no decree dated 18-2-2010 as challenged/mentioned in the application under section 12(2) read with section 151, C.P.C. The decree, actually passed on 20-2-2010, has since not been challenged, therefore, the application under section 12(2), C.P.C. read with section 151, C.P.C. as framed is not maintainable in law. Learned counsel, further contended that the applicant was properly served with summons of the suit and no 'fraud' and/or 'misrepresentation' as alleged was ever committed by respondent No.l. Such position of service, of course, is quite clear from the diary sheet of Additional Registrar (O.S). Per diary sheet of Additional Registrar of 14-12-2007, service against respondents Nos.2, 4 and 5 were 'held good' and consequently four weeks' time was granted for filing of their 'written statement'. As far as applicant and respondent No.3 are concerned, per diary of 14-12-2007 summons were repeated to them through DISTRICT JUDGE LARKANA AND ISLAMABAD respectively.

55.       Learned counsel for the respondent No.1 argued in vehemence that it is the applicant who has committed 'fraud' by removing relevant record/report from the file of Suit No.1333 of 2007. As such, the applicant, per Mr. Mustafa Lakhano, Advocate is liable to be prosecuted in accordance with law. Learned counsel further contended that the 'diary sheet' of Additional Registrar (O.S) dated 14-12-2007 reflects that the summons returned served upon the respondents Nos.2, 4 and 5. Per learned counsel, the report from DISTRICT JUDGE LARKANA/ DISTRICT JUDGE, QAMBER is missing from the court file. Not only this, per learned counsel, the son of the applicant was served with notice of application (C.M.A. No.8116 of 2007) as per bailiff report dated 18-3-2008. Mr. Mustafa Lakhani, learned counsel for respondent No.1, further argued that the applicant is a man of 'fraud' had apparently removed the relevant 'report' from Suit file No.1333 of 2007. The judgment of 18-2-2010 and decree passed on 20-2-2010 besides valid, proper cannot be questioned under the application under section 12(2), C.P.C.

56.       Per learned counsel, this court besides having jurisdiction has competently passed the judgment and decree in Suit No.1333 of 2007 on 20-2-2010 even in respect of immovable properties not situated with the five Districts of Karachi. The application thus merits no consideration and as submitted is liable to be dismissed with cost.

57.       In support of his contention Mr. Mustafa Lakhani, learned counsel for the respondent No.1 has placed reliance on the following case laws:---

(a.)       Haji Riaz Ahmed through Attorney v. Messrs Habib Bank Limited through President and 2 others (2012 CLC 507) wherein it was observed as under :---

"11.      In my respectful view, the combined effect of the two Division Bench decisions can be stated as follows. Muhammad Amin has expressly articulated, recognized and laid down the primary jurisdictional rule judicially evolved and applied by the Court, namely, that a suit will lie on the original side if the cause of action has accrued wholly or partly at Karachi. Naveed Aslam II has clarified that this rule does not extend as far as some single Bench decisions have taken it, namely, even in respect of disputes relating to immovable property located outside Karachi if it could be said that the cause of action arose here, in whole or in part. Those decisions have been expressly overruled, and it is now clear that a suit will not lie in this Court on its original side in such a situation. The position that therefore emerges from the case-law is that notwithstanding the displacement of the statutory jurisdictional rules by section 120, the judicially evolved rules have developed, and are continuing to develop, in the same direction as the statutory rules. In other words there is, at the very least, a convergence of the two sets of rules. When the widely accepted principle that section 120 has served to enlarge and not to curtail the jurisdiction of the Court is also taken into consideration, the result, in my view, is clear. The original civil jurisdiction of the Court cannot in any manner be regarded as less than the jurisdiction available under the statutory rules. As presently relevant, the statutory rules can be regarded as conferring jurisdiction in at least two situations. Firstly, the civil court will have jurisdiction if the cause of action arises, in whole or in part, within its local limits. This is, in effect, the Muhammad Amin rule as clarified by Naveed Aslam II. Secondly, the civil court will have jurisdiction if the defendant ordinarily works for gain or resides within the local limits of the court's jurisdiction and this is so irrespective of where the cause of action has accrued. This statutory rule has of course, to be read and applied in conjunction with the two Explanations to section 20. In my view therefore, the original civil jurisdiction of this Court must also be regarded as extending to the situation where the defendant ordinarily resides, or works for gain, in Karachi. Equally, in the case of a corporation, if it has its principal or head office at Karachi this Court would also have jurisdiction. This would be so regardless of whether the cause of action has accrued at Karachi or not. Any other view would necessarily result in a loss and curtailment of the Court's jurisdiction and in my view that is not a result that the law countenanced by applying section 120 to the High Court." (Underlining is mine).

(b).       Likewise in the case of Gulfam and others v. Bibi Qudsia Begum and others (2003 CLC 1183), it was held as follows:---

            "The original civil jurisdiction of this court can be exercised to entertain a suit with one or more ingredients necessary to attract the jurisdiction of this court which in view of section 120, C.P.C. has undoubtedly a very broad base, yet there should always be some rationale to attract jurisdiction. There must be some jurisdictional facts necessary to invoke jurisdiction. Same may be either the defendant residing or carrying on business or in cases plurality one of the defendants being so subject or the cause of action, wholly or in part, arising or property: subject-matter of the suit being situate or a defendant-firm or company having a main or branch office within the jurisdiction which can attract the original civil jurisdiction of this Court. The only logical effect of section 120 of the Code seems to be that, subject to discretion of the Court itself the technicalities in sections 16, 17 and 20 cannot be pressed into service to divest a High Court of its original civil jurisdiction."

58.       Heard and perused the record.

59.       Before proceedings further I would like to refer to Chapter VI of Sindh Chief Court Rules (O.S.) which pertains to the processes of service. Rules Nos.140 to 146 of Sindh Chief Court Rules (O.S.) being relevant are reproduced as under:---

"140. Endorsement of identifier on the original process. If serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature on thumb-impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served.

141. Procedure where defendant refuses to accept service or cannot be found. Where the person to be served refuses to sign the acknowledgment or cannot be found, the serving officer shall whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thump-impression of at least one respectable person of the locality in support of such fact.

142. Return of service.--- (1) Every process serving officer shall immediately after completion of any duty connected with any process, record with his own hand upon the original process at the place of execution and in the presence of witnesses (if any) his report specifying the manner of execution or the causes which prevented execution. Such report shall be sworn or affirmed before the Nazir or the Deputy Nazir and shall, together with the process, be filed in the record.

(2)        Process serving officers must invariably note the date, hour and exact place of service of each individual process.

(3)        If the process is addressed to more than one person, the report shall describe the manner of service on each person and also the sequence in which the processes are served on different persons.

143. Service by affixing to outer door. If a process is affixed to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit as to the following matters:

(1)        the number of times and the dates and hours at which he went to the house;

(2)        the attempts made by him to find the person to be served;

(3)        whether he had any, and what, reason to suppose that such person was within the house or in its neighbourhood, or endeavouring to evade service;

(4)        whether any adult male member of the family of the person to be served was residing with him,

144. Notice where summons is affixed to outer door. If a summons to a defendant is affixed to the outer door of a house, the serving officer shall affix therewith a notice that the person so served can, upon application to the court, obtain a copy of the plaint, and shall in his return state that he has done so and shall return the plaint to the court. If the summons has been sent by another court for service and the defendant does not apply for the said copy before the summons is returned to the said court, it shall be returned to that court along with the summons.

145.     Inquiry as to sufficiency of service. The Registrar (O.S.) shall hold an inquiry as to the sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the day appointed therefore in such process by or on behalf of the person or persons against whom it has been issued.

            Such inquiry may be adjourned, if necessary, from time to time. Affidavits and further affidavits may be received or evidence taken viva voce at such inquiry.

146.     Fresh process not to issue until previous one returned. Unless otherwise ordered, a second or subsequent process shall not be issued until after the one previously issued has been returned.

60.       In the instant case, from the record it is quite clear that none of the above rules have been followed in its letter and spirit. The diary of the Additional Registrar (O.S.) speaks that 'summons not issued' to the defendants Nos.1 and 3 returned served. Such diary of the Additional Registrar (O.S.) besides self-contradictory and self-clashing. No 'Bailiff report' is available on record to ascertain the truth. Under the same diary cost was not paid and notice on C.M.A. No.8607 of 2007 was not issued. In view of such position presumption would be that cost was also not paid for issuance of summons to the applicant No.3.

61.       Further after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973, the situation has now significantly changed. Article 10-A mandates that 'civil rights' and 'obligations' be adjudicated upon through a 'fair trial' and 'due process' of law. 'Fair trial' and 'due process' beside being a fundamental right, not only covers the 'substantive' but the procedural 'due process' as well. Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 reads as follows:---

"10-A, Right to fair trial---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."

62.       In this regard, the case of Shabir Ahmed v. Kiran Khursheed and others (2012 CLC 1236), can be referred wherein relevant observations read as below:---

            "Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that each person shall be accorded certain 'process' if they are deprived of life, liberty or property---The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." (Underlining is mine).

63.       In violation of 'fair trial' and 'due process' any order passed or proceeding if, held, would indeed be null and void. On this aspect of the matter in the case of Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another (2012 SCMR 1235), it was observed as follows:---

"11.      .... Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void." (Underlining is mine).

64.       Likewise, in the case of Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCMR 681), the Hon'ble Supreme Court held as follows:---

            "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal." (Underlining is mine).

65.       Moreover under the law, Courts are not supposed to pass straight away 'ex parte decrees' merely on the basis of the plaints. Rather Courts are obliged to decide the cases strictly on merits. In the present case, the 'ex parte decree' was passed, of course, without recording of any evidence. The 'AFFIDAVIT-IN-EX PARTE PROOF', no doubt, was available on record but the plaintiff in his own wisdom failed and/or avoided to record his evidence. Pleadings by themselves are not evidence. On this aspect of the matter the following cases can be cited:---

(a)        Hakimuddin v. Faiz Bux (Reported in) 2007 SCMR 874 wherein it was observed as follows:---

"5.        ..... It is an admitted fact that respondent did not appear before the trial court to prove the content of the plaint. It is established law that pleading of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in court or admitted by the other party. The respondent No.1 failed to prove the factum of his superior right of preemption, therefore, trial court as well as learned High Court erred in law to decree the suit of the respondent. It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 1991 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not a substantive evidence". (Underlining is mine).

(b)        Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others (PLD 1975 K 598 Placitum 'A') wherein it was held as follows:---

"7         ......As a rule pleadings are not evidence by themselves; the statements made by defendant in the written statement, could be used as evidence in cases where they amount to admission of the plaintiff's pleas. These admissions could be direct or even by implication, and in both cases are proof in themselves."

66.       Rules and regulations are framed broadly with a view to streamline the procedure and course of justice. Law always prefers decision of the case on merits and discourage technical knockout. The aim behind all legal formalities is to safeguard the justice and not otherwise to thwart it. In the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) on this aspect of the matter it was observed as under:---

            "I must confess that having dealt with technicalities for more than 40 years out of which 30 years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we giving effect to the form and not to the substance defacts substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." (Underlining is mine).

67.       In terms of section 12(2), C.P.C. the remedy is available to a person who challenges the validity of the Orders, Judgment and Decree obtained by means of 'fraud', 'misrepresentation' of facts or want of jurisdiction. Section 12(2), C.P.C. reads as follows:---

"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."

68.       Bare perusal of section 12(2), C.P.C. would show that for the determination of the application under section 12(2), C.P.C., no procedure has been provided. Of course, Courts are not under any obligation to frame issues, record evidence of the parties or otherwise follow the prescribed procedure as being necessary for a decision in suit. Keeping in view of the nature of illegalities levelled in the application under section 12(2), C.P.C., the Court in its own discretion can adopt any mode of procedure for decision of the application under section 12(2), C.P.C. In view of such position I am of the considered opinion that in the instant case neither any issue needs to be framed nor otherwise any evidence is required to be led particularly under the facts and circumstances of the case.

69.       It would be appropriate to understand the meaning of words 'fraud' and 'misrepresentation' as used in section 12(2), C.P.C. in the light of dictum laid down by the apex court in the case of Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCMR 1097). The relevant extract regarding 'fraud', 'misrepresentation' and 'collusion' reads as follows:---

"Fraud"

            "Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221."

            "A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134).

            "Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).

            "The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two persons that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sameeullah Khan 1986 CLC 2655).

            "For the purpose of subsection (2) of the section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud" (Zafarullah etc. v. Dost Muhammad etc. PLD 1984 Lah. 396).

"Fraud"

            "A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury"......... "A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated" (Blacks Law Dictionary Fifth Edition).

"Misrepresentation"

            "Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead" (Blacks Law Dictionary Fifth Edition).

"Collusion"

            "An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose". (Black's Law Dictionary Fifth Edition). (Underlining is mine).

70.       It is well-settled proposition of law that when any order, judgment or decree is procured by 'fraud', 'misrepresentation' or such order, judgment and decree is passed by a Court having 'no jurisdiction', then in such eventuality any person aggrieved by such order, judgment and decree has inherent right to challenge its validity by way of section 12(2), C.P.C. Pursuant to incorporation of section 12(2), C.P.C. now if a person being aggrieved wishes to challenge the validity of an order, judgment and decree on the plea of 'fraud', 'misrepresentation' or 'want of jurisdiction', then his resort is by way of moving an application under section 12(2), C.P.C. to the court which passed such order, judgment and decree. Needless to say, that 'fraud' vitiates the most solemn proceedings. Besides it is also quite settled proposition of law that 'fraud' cannot be proved directly, however, it has to be inferred from the surrounding circumstances plus conduct of the parties to the proceedings.

71.       Keeping in view the definition of 'fraud', 'misrepresentation', 'collusion' in juxtaposition of record of the case the respondent No.1, no doubt, has obtained the 'ex parte decree' against the applicant (Judgment-debtor-defendant No.1) through 'misrepresentation'. The Applicant by mixing up DISTRICT QAMBAR with DISTRICT LARKANA and thereafter managing the issuance of summons to DISTRICT JUDGE LARKANA instead of DISTRICT JUDGE QAMBAR and not serving the defendant properly has committed 'fraud' and 'misrepresentation' upon the court.

72.       No doubt, the plaintiff did file 'AFFIDAVIT-IN-EX PARTE PROOF' but the plaintiff held himself back and did not come forward to record his evidence for proving his claims including 'mesne profit' in the sum of Rs,40,00,000. And straight away got an ex parte decree on 18-2-2010 in terms of prayer clauses 'i' to 'iv' of the plaint. The applicant, was thus, not only deprived of its 50% share in the 'subject property' but also burdened with a claim of Rs.40,00,000 mesne profit without leading any evidence.

73.       Moreover, respondent No.2 was served with summon and 'no doubt' written statement was also filed on 16-1-2008. The matter thereafter was posted on 2-3-2009 for hearing of C.M.A. No.8616 of 2007 and Issues. But instead of 'settlement of Issues' and hearing of the application, the case was reserved for Judgment on 30-3-2009 at the false statement of respondent No.1.

74.       Apart from the above, and without recording of his evidence, the respondent No.1 straight-away through 'misrepresentation' got the 'ex parte decree' on 18-2-2010 though case was not fixed for 'final disposal'. On 25-1-2010, the case was fixed for hearing of C.M.A. No.8616 of 2007 and issues.

75.       Even otherwise, the suit ought to have been decided on merits, in accordance with law as the 'written statement' of respondent No.2 (J.D. No.2-defednant No.2), was available on the record. On 19-6-2009 when the matter came up before the court, it was ordered that 'matter be fixed for rehearing on a date to be fixed by the office according to roster.' On 25-1-2010, when again the matter came-up before the Court then it was stated that the matter has inadvertently been fixed today for hearing of C.M.A. No.8616 of 2007 and issues. By 'misrepresentation', consequently the suit was got reserved for judgment at the instance of the learned counsel for the respondent No.1 (D.H-plaintiff). Moreover, 'written statement' of respondent No.2 filed on 16-1-2008 was also available on record but ex parte decree was passed.

76.       In the case in hand, 'misrepresentation' and 'fraud' during the proceedings is also apparent from the record. The applicant and respondent No.1 are brothers and it was well in knowledge of respondent No.1 that the applicant (defendant No.1) is permanent resident of Abbasi Muhalla, Qambar at Shahdad Kot but with a view to create confusion and to procure 'Ex parte Decree', the native District of the applicant i.e. DISTRICT QAMBAR was mixed-up with DISTRICT LARKANA and summons were got issued to the applicant through DISTRICT JUDGE LARKANA instead of DISTRICT JUDGE QAMBAR. Under the circumstances, the 'Ex parte Judgment' and 'Decree' both dated 18-2-2010 were obtained by playing 'misrepresentation' and 'fraud'. As such, under circumstances of the case the same are liable to be set aside.

77.       The plaintiff apart from other reliefs had also prayed for award of 'mesne profit' in the sum of Rs.40,00,000 (Rupees Forty Lacs only) on account of the agricultural produce which nonetheless was also awarded to the plaintiff without leading any evidence in proof of the 'mesne profit'. The burden of proving the claim of 'mesne profits' that might have been received by the plaintiff was on the shoulder of the plaintiff. The respondent No.1 not only led any evidence to justify the quantum of 'mesne profit' but also the period for which the 'mesne profit' was claimed. Nevertheless, without discharging such burden of proofs the suit was decreed inter alia for 'mesne profit' in the sum of Rs.40,00,000 (Rupees Forty Lacs only).

78.       On this aspect of the matter reliance is placed on the case of Boman Abadan Irani and others v. Jehangir J. Mobed and others (PLD 1967 Karachi 449) wherein it was held as under:---

"24.      The plaintiff had claimed mesne profits at the rate of Rs.500 per day from 1-9-53 till 15-12-53 amounting to Rs.53,000 and further mesne profits at the same rate till the date of possession. However, no evidence was led by the plaintiff in proof of this claim. The burden of proving the amount of profits that might with ordinary diligence have been received is on the person claiming it"....

79.       Diary sheet of Additional Registrar (O.S.) dated 26-2-2008 as far as defendants Nos.1 and 3 are concerned reads as follows:---

(i)         W.S. in four weeks.

(ii)        Summons not issued to defendants Nos.1 and 3 returned served.

(iii)       Notice of C.M.A. No.8607 of 2007 not issued as cost not paid. (Emphasis and underlining are mine).

80.       The words 'summons not issued returned served' besides self-contradictory are self-clashing and doubtful. As far as Applicant (J.D.No.1-defendnat No.1) is concerned in view of the ambiguity, the benefit of 'doubt' ought to be given to the applicant (J.D.No.1-defendant No.1). On this score also the ex parte judgment and decree both dated 18-2-2010 are liable to be set aside/re-called.

81.       It is worth to note, on the complaint of respondent No.1, an inquiry was also conducted by Enquiry Officer/Additional Registrar (Admin.) but the complaint of respondent No.1 was also found meritless. For ready reference the operative part of the 'inquiry report' dated 12-3-2011 reads as follows:---

            "In view of this glaring fact that 21st March, 2008 was the declared holiday on account of Eid Miladun Nabi (Peace Be Upon Him), therefore, the assertions/allegations of the complainant Mr. Muhammad Zaman Abbasi that the matter was taken up in the Board of Additional Registrar (O.S) on 21st March, 2008 in his presence, when the defendant No.1 was also present and obtained copy of the plaint, becomes false and fabricated. The complainant has made false allegations against the staff of this Court for the reasons best known to him. The complaint, therefore, merits no consideration and may be filed with a warning to the complainant not to indulge in making such uncalled for and baseless allegations in future. (Underlining is mine).

            Report is submitted.
            Sd/- 12-3-2011
            (Muhammad Ashraf)
            Enquiry Officer/Addl. Registrar (Admin)"

82.       Under law any person, who is adversely affected by a judgment and decree or order of a court has the right to file an appeal against the decree. Besides under section 12(2), C.P.C., the aggrieved person, without filing a separate suit, can challenge the same on the ground of 'fraud', 'misrepresentation' or 'want of jurisdiction' by simply filing an application under section 12(2), C.P.C. The requisite ingredients of section 12(2), C.P.C. as the case in hand is, have been fully established by the applicant (J.D.No.1-defendant No.1) as such the instant application under section 12(2), C.P.C. besides competent in law is well maintainable.

83.       For the foregoing reasons the application under section 12(2), C.P.C. (instant J.Misc.No.57 of 2010) is granted. The judgment and decree dated 18-2-2010 passed in Suit No.1333 of 2007 (Muhammad Zaman Abbasi v. Sardar Ahmed Abbasi and 4 others) are set aside/recalled. The applicant (defendant No.1) is permitted to file his 'written statement' within 30 days from the date of passing of this order positively and thereafter the case to proceed in accordance with law. Since, the main Application under section 12(2), C.P.C. has been granted, all other listed/pending applications as such have become infructuous. Accordingly, the same are dismissed. Parties to bear their own costs.

MH/S-48/Sindh                                                                                    Order accordingly.