2015 C L C 594

2015 C L C 594

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD JAMEEL through L.Rs.----Plaintiffs

Versus

Syeda SAKINA RAIZ and others----Defendants

Suit No.971 of 2013, decided on 9th September, 2014.

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

----O. VII, R. 11, O. XXIII, R. 3 & S.12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Compromise---Order on the basis of compromise---Plaint, rejection of---Scope---Contention of defendant was that subject matter of the suit had already been decided in an earlier round of litigation and present suit was not maintainable---Validity---Plaintiffs were seeking declaration with regard to compromise order passed in earlier suit on the grounds of fraud, misrepresentation and concealment of facts---Provisions of S.12(2), C.P.C. would come into play when one had sought any declaration through a separate suit with regard to judgment, decree or order of a competent court on any of the grounds i.e. fraud, misrepresentation or want of jurisdiction---Compromise was always arrived at between the parties on their own terms and conditions and same had to be legal and competent if consideration thereof was within competence of such parties---Parties entering into compromise could legally settle consideration for such compromise which consideration was not necessarily to be confined to the pleadings but should be within competence of parties---Compromise (agreement) could legally bind the signatories and their successors only and not the others---Mere change in relief would not be sufficient to hold a subsequent suit maintainable, as a relinquished right could not be raised subsequently---Plaintiffs had raised their present claim on the basis of same set of facts with addition to reference of earlier litigation which could not be a fresh ground---Lis between the parties stood finally decided when the parties had agreed for disposal of all their claims---Parties would not be entitled to re-agitate the adjusted claim through a separate suit till the time the compromise order/decree was holding the field---If there was any question of fraud, misrepresentation or want of jurisdiction then available remedy was not a suit but through the course of S.12(2), C.P.C.---Plaint was barred by law which was rejected in circumstances.

            PLD 1991 SC 731; PLD 1995 Pesh. 18; 2003 SCMR 604; 1990 SCMR 751; PLD 1983 SC 344; 2002 SCMR 300; 1991 SCMR 1725; 1990 SCMR 143; PLD 2010 Lah. 418; 1992 MLD 1879 and 1997 CLC 636 ref.

            Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. PLD 1968 Kar. 115; Ghulam Muhammad v. Zubaida Begum 1984 CLC 874; Noorudddin Hussain v. Diamond Vacuum Bottle Manufacturing Co. Ltd. Karachi PLD 1981 Kar. 720; Anjuman Masjid New Town v. Muhammad Shahid Zaki and 12 others PLD 2011 Kar. 550; John Paul v. Irshad Ali and others PLD 1997 Kar. 267 and Muhammad Shafi and 3 others v. Muhammad Yousaf and another 1995 CLC 481 rel.

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

----S. 12(2)---Scope and applicability of S.12(2), C.P.C.---Provision of S.12(2), C.P.C. would come into play when party had sought, through a separate suit with regard to judgment, decree or order of a competent court on any of the grounds i.e. fraud, misrepresentation or want of jurisdiction.

            Iftikhar Hussain for Plaintiffs.

            Faiz H. Shah & Co. for Defendants Nos.1 and 2.

            Date of hearing: 29th August, 2014.

ORDER

            SALAHUDDIN PANHWAR, J.--- Through instant application, under Order VII, R 11, C.P.C. defendants seek rejection of the plaint on following grounds :---

(i)         being barred under section 11, C.P.C. as it has been filed against the Order and Decree, passed in Suit No.1812 of 1996 (Old No.591 of 1982) which was finally decided by the honourable High Court of Sindh, Karachi (appellate jurisdiction) in R.A.No.147 of 2007 vide Order dated 8-10-2007;

(ii)        relief, claimed and subject matter involved, already stood decided in previous suit i.e. Suit No.1812 of 1996 when plaintiff Muhammad Jameel himself filed compromise application bearing C.M.A. No.1021 of 1991 and C.M.A. No.1093 of 1991 and honourable High Court allowed the same vide Order dated 5-6-1991 and subsequently, the plaintiff Muhammad Jameel again filed 2nd Compromise application and appeared as attorney for legal heirs. Hence legal heirs of plaintiff have estopped from challenging the said orders by way of separate suit and act amounts to perjury;

(iii)       Earlier Suit No.24 of 2013 was filed by the plaintiff and withdrawn but concealed such facts in the suit;

(iv)       Earlier Mother of attorney Saleha Zaheen (being legal heir of Baba Zaheen Shah Taji) filed Suit No.Ni1/2006 which was dismissed for Non-Prosecution. Another Suit No.277/2011 before Civil Judge Central and subsequently withdrawn the same on same assertions as made in present suit. The Attorney Irshad Hussain is the son-in-law of plaintiff."

2.         The case of the plaintiff as set out is that they are sons and daughters of the deceased Muhammad Jameel who died on 6-11-2011, leaving plaintiffs as legal heirs in number of properties. Original documents of properties and company's original papers are in custody of defendants Nos.1 and 2 which they obtained through unfair means. Messrs Jameel Enterprises (Pvt.) Ltd. was registered in May/June, 1974 and it had three directors, each holding 1/3rd share. The Jameel Enterprises was claimed to be a separate entity and proprietorship was under ownership of deceased Muhammad Jameel. The plaintiffs claim that Muhammad Tahseen Shah Taji was one of the Director and died on 23-7-1979 leaving behind his sons and daughters, including Muhammad Jameel (father of plaintiffs). Muhammad Hashim son of Muhammad Tahseen also died in year 2002, leaving his widow as only surviving legal heir. Suit No.591 of 1982 (New No.1812 of 1996) filed by legal heirs of deceased grandfather in which several properties included by attorney, husband of plaintiff Mst. Alia to that suit and in such litigations misrepresentation was made by attorney and sometimes through other legal heirs of grandfather with ulterior motives but company was not party to such litigation. On 16-7-2010 plaintiffs acquired knowledge that Mst. Syeda Sakina and Shabbir Ahmed, posing them to be purchaser of both properties from legal heirs of Muhammad Tahseen Shah, through sale agreement dated 15-12-2003. On 16-7-2010 they claimed to be purchaser from legal heirs of Muhammad Tahseen Shah. Rent of Al-Jameel, Square SD-26 Block-G North Nazimabad Karachi collected in court showing it to be property of Messrs Jameel Enterprises (Pvt.) Ltd. on 12-8-2010 father of plaintiffs acquired knowledge about fabrication of sale agreement dated 21-11-2003 or 15-12-2003 and claim on such property for which defendants Nos.1 and 2 filed suit for Specific Performance and Declaration before VIth Senior Civil Judge, Karachi Central wherein Muhammad Jameel moved an application under Order I, R.10, C.P.C. seeking his joining as party in said suit i.e. Suit No.931 of 2005; application was allowed however in revision order was set-aside, which order is questioned through Petition No.4099 of 2012 and same is pending. That the legal heirs of Muhammad Jameel (present plaintiffs) also filed an application under section 12(2), C.P.C. read with section 151, C.P.C. to court on 17-1-2003 in Suit No.591 of 1982 (New No.1812 of 1996) which suit was dismissed in non-prosecution on 17-5-2011, however, the trial court restored it and prepared the compromise decree as per compromise, submitted by parties and application under section 12(2), C.P.C. was fixed for final arguments.

3.         Learned counsel for defendants Nos.l and 2 argued that admittedly in Suit No.591 of 1982 (New 1812 of 1996) compromise was effected wherein plaintiff (Muhammad Jameel) was defendant No.3 hence instant suit is barred; Muhammad Jameel admittedly filed an application under Order I, R.10, C.P.C. which, though was allowed by trial court, but was declined by appellate court and even petition filed against such order stood dismissed on 9-12-2013. Instant suit is claimed to be 'administrative suit' but subject matter already stood decided in earlier round of litigation thus instant suit is not sustainable; property No.SD-26, Block-G North Nazimabad was sold through relinquishment deed dated 28-6-2005. Suit is barred under section 11, C.P.C. so also by section 47, C.P.C.

4.         Learned counsel for plaintiffs has argued that that suit is for Administration, rendition and cancellation of relinquishment deed; since in earlier suits issues were not decided hence question of res judicata is not involved. The property bearing No.SD-267 North Nazimabad is only subject matter which was not subject matter in earlier litigation although above property was mentioned in compromise but as it was not part of pleading, therefore, compromise is not binding to the parties for such property. Plaintiff is claiming property from legal heirs mentioned in para-4 of plaint; relinquishment deed was in violation of Court order and property in instant suit is SD-C Block-C while in earlier litigation it was in Block-D; earlier litigations and compromise (s) were barred under sections 39 to 52 of Muhammadan Law (PLD 1991 SC 731). A compromise cannot cross limit of the pleadings (PLD 1995 Pesh. 18), 2003 SCMR 604, 1990 SCMR 751, PLD 1983 SC 344, 2002 SCMR 300, 1991 SCMR 1725, 1990 SCMR 143, PLD 2010 Lah. 418, 1992 MLD 1879, 1997 CLC 636.

5.         Heard learned counsel for respective parties and examined the material available on record.

6.         What is not disputed from the pleading of the plaintiffs (plaint) that they have used the words 'misrepresentation' at number of occasions with reference to earlier litigation and outcome thereof i.e. compromise order/decree. The plaintiffs have admitted to have been actively involved in earlier litigation(s) as one of the parties. The plaintiffs, even have admitted to have preferred an application under section 12(2), C.P.C. in the decided suit but at the same time have filed the instant separate suit with number of prayers.

7.         The above position gives rise to a proposition that:---

            Whether in existence of an application under section 12(2), C.P.C. a separate suit can sustain for setting aside of a decree on grounds meant for section 12(2)?.

8.         To properly appreciate the above proposition, it would be just and proper to refer the section 12 (2) of the Code which reads as under:---

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

            The provision of section 12(2) of the Code is very much clear and specific in its language and wording. Through induction of this provision the legislature has placed a 'full stop' on filing of a separate suit where one challenges the judgment, decree or order of the Court on the grounds of:---

(i)         fraud;

(ii)        misrepresentation; or

(iii)       want of jurisdiction

9.         In this provision the word 'shall' has been used while confining the 'remedy', available to the person on such grounds which further stood stamped by use of the phrase 'not by a separate suit'. Thus the answer to the above proposition shall be nothing but, a big 'negation'.

10.       Let's examine the instant suit with reference to above proposition for which one of the prayer clause (s) of the plaintiffs is necessary and same is reproduced hereunder:---

            "That, it is to be declared that 1st compromise application and order on it and 2nd compromise application in Suit No.591/82 new No.1812/96 both applications are made by legal heirs of Muhammad Tahseen Shah Taji due to using fraud and misrepresentation and by concealing the real original facts and documents of title knowingly under mala fide intention from the court, as property bearing No.SD-33 Block A North Nazimabad Karachi is own property of Muhammad Jameel i.e. father of plaintiffs whereas the property bearing No.SD-26 Block G Al-Jameel Square North Nazimabad Karachi is the property of Messrs Jameel Enterprises and deceased father of plaintiffs was the proprietor of the firm so it is also declared that the property bearing No.SD-26 Block G North Nazimabad Karachi is also the property of Muhammad Jameel and his legal heirs are entitled as per their share in said property and whatever the rent, arrears, benefits, profits availed, recovered, collected from tenants or, by way of other mode in detail , tenant wise detail with name, date A/Cs from January, 2010 to date or arising out of said properties." (underlining is supplied for emphasis)

The underlined and bold portion of the prayer clause of the plaintiff (s) make it quite obvious that the plaintiffs are seeking a declaration in respect of the compromise order, passed in earlier suit, on ground of misrepresentation, fraud and concealment of facts. Once one seeks any declaration in respect of a 'judgment, decree or order' of a competent Court on any of the grounds i.e. 'fraud, misrepresentation or want of jurisdiction' through a separate suit, the provision of section 12(2), C.P.C. shall come into play whereby insisting for rejection of the plaint under Rule-11(d) of the Order-VII of the Code. If not, it shall frustrate the very object of the provision of section 12(2), C.P.C. which cannot be legally allowed to prevail.

11.       Be that as it may, it is not the case of the plaintiffs that they were under the dark about the earlier proceedings but it is a matter of record that Mr. Jameel, the father of the plaintiffs remained a signatory to compromise, arrived in earlier suit, therefore, the present plaintiffs, being claiming under Mr. Jameel, are not legally justified to challenge such act(s) through separate suit on the ground that the property in question was not included as subject matter in such suit. Let me make it clear here that a compromise is always arrived between the parties on their own terms and conditions and shall be legal and competent if the consideration thereof is within competence of such parties. The parties, entering into compromise, can legally settle 'consideration' for such compromise which `consideration' is not necessarily to be confined to pleadings but should be within competence of the parties because a compromise (agreement) can legally bind the signatories and their successors only and not to others. I am quite clear in my such view with the case of Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd. [PLD 1968 Karachi 115], wherein it is held:---

            "The words "that relates to suit" in Order XXIII, rule 3, C.P.C. are sufficiently wide to embrace the terms and conditions which constitute consideration of the compromise, and in all such cases the Court cannot refuse to record the compromise merely on the ground that certain terms and conditions are not strictly within the scope of the suit. It is not the policy of the Code of Civil Procedure to discourage compromises of litigation. The Courts are under duty to record lawful compromises and a decree based on compromise, though it includes terms and conditions which are not initially within the scope of the suit but are considerations for compromise, would, nevertheless be the decree of the Court, and unless there is express legal prohibition, such a decree would be executable under Order XXI, C.P.C."

            In the case of Ghulam Muhammad v. Zubaida Begum [1984 CLC 874], it is held that:---

            "Property or right forming consideration for subject matter of litigation as per terms of compromise, held, would be considered as subject of litigation resulting in compromise for all intents and purposes, and such subject matter of consideration would not be treated as extraneous property for purpose of executing proceedings".

            In the case of Noorudddin Hussain v. Diamond Vacuum Bottle Manufacturing Co. Ltd. Karachi [PLD 1981 K. 720], it is held that:---

            "Compromise relating to matter outside scope of suit being a part of consideration for agreement as to matter in suit, entire compromise, or an integral whole, held must be recorded and decreed as relating to suit whether or not otherwise relating to suit."

12.       The plaintiffs have also pleaded that since there has been difference of block number in respect of the property so mentioned in the compromise or that has been made a subject matter in this lis, therefore, instant suit is not barred under the law. This plea of the plaintiffs appears to be entirely misconceived for the simple reason that though there has been difference of Block number yet from reading of the plaint and relief(s), sought therein, it becomes quite clear and obvious that this is same property because admittedly the plaintiffs first attempted to protect such property by making an application under Order I, Rule 10, C.P.C. and then through pending application under section 12(2), C.P.C. Had it been so, as claimed by the plaintiffs this should have been mentioned/ specified in the plaint or there would be no reason for them to challenge the compromise order or even seeking declaration of such compromise order in the instant suit. The Order II, Rule 2 of the Code also stands in the way of the plaintiffs regarding their plea to have come for different plea but under same set of facts against same parties. A mere change in relief would not be sufficient to hold a subsequent suit maintainable because a relinquished right cannot be raised subsequently and since admittedly the plaintiffs have raised their instant claim on basis of same set of facts with addition to reference of earlier litigation would not be a fresh ground. I find support in my such view with the case law reported as Anjuman Masjid New Town v. Muhammad Shahid Zaki and 12 others [PLD 2011 Karachi-550] wherein it was held:---

            "…. To which it may be observed that clause 1 of Rule 2 of Order II, C.P.C. provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. It is, therefore, left or the discretion of the plaintiff how he, "frame" his suit and choose jurisdiction, according to his suiting, if law permits. However, once the plaintiff has opted, then by virtue of clause 2 of Rule 2 of Order II, C.P.C. he "shall not", afterwards sue in respect of the omitted or relinquished claim. Since the plaintiff omitted and/or relinquished to raise the claim of damages in Suit No.913 of 2010 he could have not raised the prayer of damages in this suit. Therefore, by virtue of clause 'd' of Rule 11 of Order VII, C.P.C., this suit was barred by law and could have not been instituted and/or entertained at all."

Thus the plea of the plaintiffs that earlier suit was barred under certain provisions of Muhammadan Law. This plea also appears to be entirely misconceived for the reason that the parties, including the father of the present plaintiffs, never raised such plea and even competence of parties to enter into compromise was never claimed to be going beyond their rights, claims and title in properties so left by their predecessor-in-interest namely Muhammad Tahseen Shah Taji. However, since application under section 12(2), C.P.C. is pending decision before competent court hence any further discussion may cause prejudice to the merits, therefore, I refrain from going deep down into such plea.

13.       In the last, I would like to take the plea of the plaintiffs that since in earlier suit issues were not decided but it was compromised therefore, section 11 of the Code has no application. I find no substance in this plea for the simple reason that a lis stands finally decided when the parties to such lis agree for disposal of all their claims through course, provided by Order XXIII, Rule 3 which is also evident from reading of the Rule-3 of the Order XXIII which, for convenience and understanding, is reproduced hereunder:---

"3.        Compromise of suit.--- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit the Court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit."

The parties to such lis would not be legally entitled to re-agitate the adjusted claim through a separate suit till the time the compromise order/decree is holding the field. If there has been any question of 'fraud, misrepresentation or want of jurisdiction', the only available remedy with such person is not a separate suit but through the course of section 12(2), C.P.C. Reference can be made to the case of John Paul v. Irshad Ali and others [PLD 1997 Karachi 267], wherein it is held that:---

            "After incorporation of section 12(2), C.P.C. a decree obtained by making wilful misrepresentation and/or passed on the basis of void agreement can validly be challenged before the Court which passed such decree."

            In the case of Muhammad Shafi and 3 others v. Muhammad Yousaf and another [1995 CLC 481], it is held that:---

"8.        Even if that be so, this plea hardly advanced the case of the petitioners inasmuch as the real object of the petitioners is to have the order of the Civil Court dated 9-9-1991 sanctifying the compromise between the parties, set aside on the ground of fraud and misrepresentation. No separate suit could be filed in this behalf and the remedy, if any, of the petitioners was by approaching the same Court through an application under section 12(2), C.P.C.."

14.       In view of what has been discussed above , I am of the clear view that plaint of the plaintiffs is barred under the law hence same is rejected as such.

AG/M-165/Sindh                                                                                             Plaint rejected.