2015 C L C 877

2015 C L C 877

[Sindh]

Before Aziz-ur-Rehman, J

ASIF MOWJEE----Applicant

versus

ZAHEER ABBAS and others----Respondents

Judicial Miscellaneous No.31 along with Suit No.17 of 2012, decided on 13th March, 2014.

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

----S. 12(2) & O.XXIII, R.3---Qanun-e-Shahadat, (10 of 1984), Art.113---Setting aside of decree---Plea of fraud, or misrepresentation---Consent/compromise decree--- Scope--- Applicant sought to set aside consent/comprise decree in a suit---Contention of applicant was inter alia that "written statement", "applications" and "vakalatnama" of applicant's counsel were obtained by the plaintiffs by putting him and his family under extreme duress and eminent threat or fear---Held, that provisions of S.12(2), C.P.C. could only be pressed into service where any "fraud" or "misrepresentation" was played upon the court during "proceedings", and not otherwise ---Application under S.12(2), C.P.C., in the present case, was framed and filed in a way that no fraud or misrepresentation had even been alleged ---Grounds alleged by the applicant were alien to S.12(2), C.P.C. and were not requisite grounds for assailing decree under S.12(2), C.P.C.---"Fraud" or "misrepresentation" was not only to be alleged, but also were to be proved---All averments /assertions made in the plaint had been admitted by the applicant in his "written statement", and such admissions were binding upon the applicant in view of Art.113 of the Qanun-e-Shahadat, 1984---Respondents had filed counter affidavits to the application under S.12(2), C.P.C. which had gone unchallenged/uncontroverted---All documents including the "vakalatnama" was signed by the applicant, and as such the consent decree passed was not the result of any fraud or misrepresentation particularly when the counsel as per the "vakalatnama" was authorized to compromise the suit---Impugned consent order and decree were not open to interference---Application under S.12(2), C.P.C. was dismissed, in circumstances.

            Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi 2002 SCMR 1761; Wazir Hussain v. Abdul Rehman through legal heirs and another 2002 YLR 1600; Land Acquisition Collector Tarbella Dam Resettlement Organization, WAPDA, Ghazi and 2 others v. Hikmat Khan and another 1996 MLD 1587; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782 and Muhammad Nawaz Khan v. M. Khan and 2 others 2002 SCMR 2003 ref.

            Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Jehan Khan v. Province of Sindh and others PLD 2003 Kar. 691; Dr. Ansar Hassan Rizvi v. Syed Mazahar Hussain Zaidi 1971 SCMR 634; AIR 1930 PC 158 and Mobile Eye Service of Pakistan Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 rel.

(b) Administration of Justice---

----Conflicting/contradictory pleas---When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, such act by itself leads to the presumption that the person did not have a genuine cause of action---Conflicting stands amount to destroying ones own cause of action, and therefore the entire foundation of plaintiff claim was to be treated as false.

            Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Ltd. and 5 others 2006 CLC 342 rel.

            Muhammad Jamshed Malik along with Abdul Qayoom Abbasi for Applicant.

            S. Ali Bin Adam Jafri for Respondent No.1.

            Khalid Mehmood Shah along with Ghulam Murtaza Malik of Liaquat Merchant Associates for Respondent No.2.

            Date of hearing: 26th February, 2014.

ORDER

            AZIZ-UR-REHMAN, J.--- By means of this common order I intend to dispose of the Judicial Miscellaneous application under section 12(2), Civil Procedure Code bearing J.M. No.31 of 2012 [Asif Mowjee v. Zaheer Abbas and Bank Al-Habib Ltd.] as well as Nazir's Report dated 18-5-2013 filed in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib].

2.         Through the instant J.M. No.31 of 2012 the applicant has challenged the 'consent order' dated 20-6-2012 and 'decree' passed on 25-6-2012 in Suit No.17 of 2012 with a prayer that the same be set aside mainly on the grounds that the 'written statement', other 'applications', if any and 'Vakalatnama' of Applicant's counsel were obtained by respondent No.1, his uncles by putting him and his family under extreme duress and eminent threat of fear.

MAIN APPLICATION UNDER SECTION 12(2), C.P.C.

3.         The brief relevant facts for decision of the above application are as follows:---

4.         The aforesaid Suit No.17 of 2012, was filed by respondent No.1 [plaintiff-decree holder] against the applicant [defendant No.1-Judgment debtor] and Bank Al-Habib Ltd., [defendant No.2-Mortgagee Bank] for specific performance of sale agreement dated 12-8-2008 entered into between the applicant and respondent No.1 and for injunction against both the respondents herein.

5.         Per averments, the applicant is the 'lawful owner' of 'Bungalow bearing No.9, measuring 991 sq.yds, situated in Khayaban-e-Mujahid, Phase-V, Defence Housing Authority, Karachi [hereinafter means 'subject property']. The total sale consideration of the 'subject property' as was mutually fixed is at Rs.3,90,00,000 [Rupees Three Crores and Ninety Lacs only]. Out of which Rs.50,00,000 [Rupees Fifty Lacs only] were paid to the applicant in cash. Such payment was not only acknowledged in the sale agreement of 12th August, 2008 but also a separate receipt was signed and executed. Besides, possession of the 'subject property' was also handed over to the respondent No.1, upon signing and executing the possession letter dated 12-8-2008.

6.         Per clause 1 of the aforesaid sale agreement, the balance sale consideration in the sum of Rs.3,40,00,000 [Rupees Three Crores and Forty Lacs only] was payable at the time of releasing of all the 'original documents' of the 'subject property' allegedly lying in the High Court of Sindh. Nevertheless, dispute arose between the parties to the Sale Agreement dated 12th August, 2008 and consequently Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] was filed in this court FOR SPECIFIC PERFORMANCE AND INJUNCTION sometime in the month of January, 2012.

7.         On 6-1-2012, when the above Suit No.17 of 2012 came up before the Court, besides issuing of notice/summons, respondent No.2 Bank was restrained from dispossessing the respondent No.1 from the 'subject property' without due process of law. For ready reference order dated 6-1-2012 is reproduced as follows :---

'6-1-2012

Mirza Sarfraz Ahmed, Advocate for the Plaintiff.

1.         Urgency granted.

2.         Granted subject to all just exceptions.

3.         The learned counsel for the plaintiff argued that vide agreement dated 12-8-2008, the defendant No.1 agreed to sell bungalow No.9 situated at Khayaban-e-Mujahid, Phase-V, DHA Karachi to the plaintiff in the total sale consideration of Rs.3,90,00,000 out of which the plaintiff had paid Rs.50 Lacs to the defendant No.1 and remaining amount was to be paid at the time of clearance of all original documents lying in this Court in a case as surety. The learned counsel submits that it disclosed to the plaintiff that in fact the original documents were mortgaged with the defendant No.2 and not deposited in this Court as surety and now the defendant No.2 has already obtained the judgment against the defendant No.1 and there is a likelihood that it will be auctioned. The learned counsel further submits that the property in question is in possession of plaintiff and he has pointed out annexure 'C' which is possession receipt issued by defendant No.1, whereby he handed over possession of property in question to the plaintiff. The learned counsel further submits that since the plaintiff is in possession, he is ready to pay outstanding amount to the bank directly in discharge of liability of defendant No.1, which is not more than Rs.21,441,099 according to the judgment dated 16-10-2010 passed by the banking court No.1 in suit No.1035 of 2008.

            Issue notice to the defendants. Meanwhile, the defendant No.2 shall not dispossess the plaintiff without due process of law. Adjourned to 12-1-2012." [Underlining is mine].

8.         Upon service, the Applicant filed his written statement. In the written statement almost all the averments/assertions made in the plaint were admitted i.e. the execution of sale agreement dated 28th August, 2008 in respect of the 'subject property'; the total sale consideration in the sum of Rs.3,90,00,000 [Rupees Three Crore and Ninety Lacs only]; the receipt of Rs.50,00,000 [Rupees Fifty Lacs only] as 'advance payment' from the respondent No.1 and the handing over 'possession' of the 'subject property' to respondent No.1. In the 'written statement', however, it was loudly stated that the entire sale consideration has not been paid to the applicant within the period of 2 years as agreed between the parties to the sale agreement dated 28th August, 2008.

9.         Per averments made in the 'written statement', the 'title documents' of the 'subject property' now stated to be lying with the 'mortgagee bank' [respondent No.2] can only be returned to him after making full payment of the outstanding amounts. Per averments, until and unless the balance sale consideration is paid by the respondent No.2 neither the 'title documents' could be released nor the 'subject property' transferred in favour of respondent No.1.

10.       In the written statement, it was also prayed that the respondent No.1 [plaintiff-decree holder] be directed to deposit the balance sale consideration of Rs.3,40,00,000 [Rupees Three Crores and Forty Lacs only] in court so that not only his 'bona fide' is established but also outstanding amounts against and payable by the applicant is paid to the Mortgagee-Bank [respondent No.2].

11.       On 20-6-2012 when the said suit bearing No.17 of 2012 [Zaheer Abbas v. Asif Mowjee & Bank Al-Habib] came up before the court, with consent of all, the same was decreed in the following terms:---

1.         The Plaintiff shall deposit balance sale consideration of Rs.34 million within 45 days hereof with the Nazir of this Court.

2.         Once this amount is deposited the defendant No.2 shall place before the Nazir of this Court all the original title documents of the subject property.

3.         Nazir shall release Rs.29,063,802 in favour of the defendant No.2 in full and final satisfaction of defendant No.2's claim whereafter the defendant No.2 shall be bound to execute redemption deed or other necessary documents to redeem the property. The defendant No.1 thereafter would execute conveyance deed in respect of the subject property in favour of the plaintiff and all such expenses of registering the conveyance deed shall be borne by the plaintiff whereafter balance amount shall be paid to the defendant No.1.

4.         In case the defendant No.1 fails to execute conveyance deed, Nazir of this Court shall execute conveyance deed in favour of the plaintiff but in that case the defendant No.1 shall not be entitled for payment of remainder unless otherwise directed by the Court through further order.

5.         In case the Plaintiff fails to deposit balance sale price within 45 days the suit shall stand dismissed. 50% of the token amount shall stand forfeited and 50% would be refunded to the plaintiff from the sale proceed as the defendant No.1 shall be at liberty to proceed with the decree in his favour in accordance with law.

6.         Upon receipt of amount so suggested, the defendant No.2 shall withdraw the appeal and further record satisfaction of decree before Banking Court.

            ……………………………………………………………………………

12.       Upon passing of the 'consent decree' on 25-6-2012, the applicant promptly on 27-6-2012 filed the instant Judicial Miscellaneous Application under section 12(2), C.P.C. bearing J.M. No.31 of 2012 with a prayer for setting aside of the 'consent order' dated 20-6-2012 and 'consent decree' passed on 26-5-2012 on the alleged pleas that the signatures on his 'written statement, 'application' and 'Vakalatnama' of his counsel has been obtained by respondent No.1, his uncles viz Ishaq Lashari and Ismail Lashari allegedly by putting the applicant and his children/family under 'extreme duress' and eminent fear of bringing harm to them. In the application under section 12(2), C.P.C., it was reiterated that the applicant as being owner of the 'subject property' has already mortgaged the same with the respondent No.2 against the financial facility availed by him and his wife. Further the 'subject property' has not yet been re-deemed inter alia due to various kinds of litigation. In this regard reference was also made to the following cases:---

(i)         Suit No.991 of 2008 [Mst. Tehmina Asif wife of Asif Mowjee v. Province of Sindh and 10 others including Asif Mowjee] filed in this court by the wife of the applicant herein for seeking declaration, permanent/perpetual injunction and return of the documents of the subject property i.e. 'Bungalow bearing No.9, measuring 991 sq.yds situated in Khayaban-e-Mujahid, Phase-V, Defence Housing Authority, Karachi and cancellation of unwritten signed documents.

(ii)        Suit No.1201 of 2008 [Saleem Hussain son of Akber Ali v. Asif Mowjee son of Late Ashraf Mowjee, Mst. Tehmina Asif and Bank Al-Habib [respondent No.2 herein] for specific performance, redemption, declaration, cancellation, injunction and damages.

iii.         Suit No.1627 of 2012 [Asif Mowjee v. Zaheer Abbas] for possession, mesne profit and permanent injunction.

13.       Per assertion made in the application under section 12(2), C.P.C., Suit No.991 of 2008 mentioned at Sr.No.1 hereinabove was withdrawn unconditionally on 1-11-2011 by the wife of the Applicant [Mst. Tehmina Asif]. It is worth to mention herein that the Bank's Suit bearing No.1035 of 2008 [Bank Al-Habib v. Asif Mowjee and his wife Tehmina] for recovery of Rs.37,127,856.38 was decreed on 22-4-2008 but in the sum of Rs.2,14,41,099 [Rupees Two Crores Fourteen Lacs Forty One Thousand and Ninety Nine only] against the applicant and his wife jointly and severally with costs and cost of funds from the date of 'default' till realization of the decretal amount. Final decree for sale of the mortgaged property [subject property] was also allowed.

14.       Apart from the above, reference has also been made to the following FIRs:---

i.          FIR No.401 of 2011 lodged at P.S. Darakhshah by one Bilal Shaikh son of Jamal Shaikh against fraud and forgery committed by Asif Mowjee regarding and in respect of sale transaction of the subject property. Per FIR, the incident had taken place on 24-7-2011 at 5:00 PM.

ii.          FIR No.172 of 2012 lodged at P.S. Gizri by Mst. Tehmina wife of Asif Mowjee against one Ishaq Lashari and others for alleged attempt to keep the complainant in his car. Per FIR such incident had taken place on 4-6-2011 at 1430 hrs.

15.       On the basis of the aforesaid pleas/grounds the instant Judicial Miscellaneous Application under section 12(2), C.P.C. has been filed for setting aside the 'consent order' dated 20-6-2012 and 'consent decree' passed on 25-6-2012 in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] with a prayer for setting aside the same.

16.       On 29-6-2012, when the above Judicial Miscellaneous Application came up before the court the following order was passed:---

"29-6-2012

            Mr. Jamshid Malik Advocate for the Applicant.

--------

1.         Mr. Jamshid Malik, learned counsel for the applicant contends that the applicant was coerced to file written statement wherein he admitted to have sold the suit property to the plaintiff. He further contends that even the Applicant did not engage any counsel and the respondent No.1 obtained the signature of the applicant on the Vakalatnama by detaining his wife and children. It was further contended that the agreement which was sought to be enforced reflected that the applicant has handed over the possession of the suit property in 2008 whereas the Nazir's inspection conducted in another suit filed by the wife of the applicant reflects the possession of his wife in 2009. Per counsel the Applicant was forcefully dispossessed in January, 2012 after detaining him in connivance with police. The Applicant, therefore, seek setting aside of compromise decree dated 20-6-2012 for having obtained through fraud and misrepresentation.

            I am of the tentative view that such assertions do not fall within the ambit of section 12(2), C.P.C. as there is a difference between a document obtained by coercion which is made subject matter of the suit or fraud and misrepresentation committed on Court for obtaining a decree. However, since serious allegations have been levelled not only against the respondent No. 1/plaintiff but the counsel of the applicant as well, and to maintain a balance and in the interest of justice, let notice be issued to the respondents for 7-8-2012. Till then the Nazir shall not disburse any amount, if deposited by the plaintiff" [Underlining is mine].

17.       Upon service, the respondent No.1 [plaintiff-decree holder] filed his detailed 'counter-affidavit' in answer to the instant JM wherein all the allegations levelled against respondent No.1 were vehemently denied/controverted. Per respondent No.l's contention 'consent order' dated 20-6-2012 and 'consent decree' passed on 25-6-2012 beside valid are not liable to be set aside. Further, it was averred that order dated 20-6-2012 was knowingly dictated in 'open Court' in presence of the learned counsel for the parties in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] thus the question of any 'fraud' and/or 'misrepresentation' does not arise. The allegations that the signatures on 'written statement', 'other applications' and/or 'vakalatnama' were obtained by respondent No.1, his uncles Ishaq Lashari, Ismail Lashari and Bilal Shaikh under 'duress' and imminent threats of 'harm' were vehemently refuted as being false, afterthought and fabricated.

18.       The presentation of vakalatnama, filing of 'written statement' etc. is always done in the office of the court. The 'written statement' amongst other documents were duly signed, of course, voluntarily before the 'oath commissioner' of High Court without any 'hue' and 'cry' and/or recording any protest whatsoever. The allegations of 'duress', 'pressure' and/or 'threat' after passing of the consent decree besides afterthought are incorrect and false. The allegations leveled in the application under section 12(2), C.P.C., per respondents' contentions, are nothing but an attempt to malign respondent No.1. Mr. Sajid Latif, Advocate, per his Vakalatnama, is duly authorized to compromise the suit. Further the Applicant had/has not denied his signatures on the 'vakalatnama' and 'written statement' and applications, which no doubt, belies the applicant in his assertions.

19.       The respondent No.2 [Mortgagee-Bank] has also filed a detailed 'counter-affidavit' in response to the application under section 12(2), C.P.C. wherein all the allegations of applicant [defendant No.1-judgment debtor] have been seriously denied. Per 'counter-affidavit' of respondent No.2 the 'subject property' is duly mortgaged with the respondent No.2 bank and a final decree for sale of the 'subject property' has already been passed in favour of the bank in Suit No.1035 of 2008 [Bank Al-Habib Ltd. v. Asif Mowjee and Mrs. Tehmina wife of Asif Mowjee]. The said suit of Mortgagee-Bank has been decreed on 22-4-2010, of course, after dismissal of leave to defend application filed by applicant [viz. Asif Mowjee and his wife Mrs. Tehmina] on 16-10-2009.

20.       Per respondent No.2's contention it is beyond comprehension that the 'written statement', filed on 24-1-2012 was if, under any 'duress' then why applicant waited till June, 2012 [i.e. till the date of passing of the 'consent decree' on 25-6-2012]. According to respondent No.2 ['Mortgagee-Bank'] filing of the instant application under section 12(2), C.P.C. is nothing but one of many afterthought attempts in series, indeed, with an aim to deprive the Bank of the benefit of its 'final decree' passed by Banking Court-I at Karachi in favour of the 'Mortgagee-Bank' on 22-4-2010. The financial facility granted to and availed by the applicant and his wife by securing the same through depositing title deeds of the 'subject property' with the 'Mortgagee-Bank' and the passing of a final decree on 22-4-2010, it is important to note, has not been denied by the applicant.

21.       The operative part of the judgment dated 16-2-2010 and 'final decree' passed on 22-4-2010 in Bank's Suit bearing No.1035 of 2008 [Bank Al-Habib Ltd v. Asif Mowjee and Mrs. Tehmina wife of Asif Mowjee] read as follows:---

"16-2-2010

            I, therefore, decree the suit of the plaintiff in the sum of Rs.21,441,099 against the defendants jointly and severally with cost of funds as specified by the S.B.P. from the date of default till realization of decretal amount. Plaintiff's prayer clause (i) is allowed. The plaintiff shall also be entitled for cost of suit. "[Note: Prayer clause (i) is pertaining to passing of final decree for sale of the subject property'].

22.       On 26-6-2014, when above matter came up before me I heard Mr. Muhammad Jamshed Malik, learned counsel for the applicant [defendant No.1-judgment debtor], Mr. S. Ali Bin Adam Jafri, learned counsel for respondent No.1 [plaintiff-decree holder] and Mr. Khalid Mehmood Shah, learned counsel for respondent No.2 [defendant No.2-Mortgagee Bank] and with their valuable assistance also scanned the record available before me.

23.       Mr. M. Jamshed Malik, learned counsel for the applicant forcefully urged that the application under section 12(2), C.P.C. is maintainable as the filing of Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] was nothing but in fact was a sham attempt to attach validity to the agreement of sale as well as possession of 'subject property' obtained by respondent No.1 on 12-8-2008. Such attempt on the part of the Respondent No.1, per learned counsel, is amounting to 'fraud' committed upon the Court. Per learned counsel, in order to effectuate such sham attempt, the applicant was forced through 'extreme duress' and without his 'free consent' to execute the following documents:---

(a) Sale Agreement dated 12-8-2008.
(b) Receipt dated 12-8-2008.
(c) Possession Receipt dated  12-8-2008 Filed in Suit No.17 of 2012
(d) The 'written statement' amongst  other document/applications
(e) Vakalatnama of Applicant's  counsel viz. Mr. Sajid Latif

24.       Per learned counsel, all the above events pertaining to filing of the Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] thus fall within the scope of section 12(2), C.P.C. Mr. M. Jamshed Malik, learned counsel for applicant further contended that, no doubt, 'consent order' dated 20-6-2012 was dictated in 'open court' but the applicant's counsel viz. Mr. Sajid Latif was not present and it was his associate counsel viz. Mr. Muhammad Waseem who in fact was in attendance. Learned counsel further contended that actually the counsel was engaged by the applicant under 'duress' exerted by respondent No.1, his uncles to effectuate 'fraud' upon this court and to procure a decree in the aforesaid suit by misrepresentation.

25.       Mr. M. Jamshed Malik, learned counsel for applicant while, arguing the case further submitted that if, this court comes to the conclusion that the order dated 20-6-2012 and decree passed on 25-6-2012 have not been obtained by playing any fraud then too, per learned counsel, Suit bearing No.17 of 2012 filed by respondent No.1 [for seeking specific performance and injunction] in terms of para 1 [typed page 3 of the decree] passed on 25-6-2012 be declared dismissed as the 'requisite amount' in the sum of Rs.3,40,00,000 [Rupees Three Crores and Forty Lacs only] has not been deposited within 45 days. Learned counsel for the Applicant in this regard also focused court's attention on Nazir's report dated 18-5-2013 [presented on 20-5-2013], wherein the deposit of 'requisite amount' was stated/shown on 6-8-2012.

26.       In support of his contentions, Mr. Muhammad Jamshed Malik placed reliance on the following case laws:---

i.          Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation Karachi [2002 SCMR 1761] wherein the Hon' be Supreme Court of Pakistan while, dilating upon the allegations regarding procuring of consent decree by way of fraud, coercion and misrepresentation observed as follows:---

"7.        As far the allegations that the compromise, decree was obtained by fraud, coercion and misrepresentation, the petitioners failed to substantiate the same as no particulars or details thereof had been given in their application under section 12(2), C.P.C. and mere allegation not supported by any material, would not invariably warrant inquiry or investigation in each case. It is for the trial Court to see whether the facts and circumstances of the case require further probe into the allegations or not. Where the Court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it can dispense with the same and proceed to decide the application. So, it is not incumbent on the trial Court to frame issues in each and every case but it depends upon the facts and circumstances of each case. The argument that the respondent by adding further interest/mark-up on the amount on which interest/mark-up had already been paid, played fraud, has no substance, for, this fact was already in the knowledge of the petitioners as they had agreed to pay the same on rescheduling of the outstanding amount, which has been admitted by the petitioners in their Suit No.416 of 1996, as such, they being the privy to the rescheduling of the loan, cannot turn around to say that further mark-up was fraudulently charged. It is settled law that where allegation of fraud is levelled, it must be specified and details thereof should be given. The contents of M.O.U. were mutually agreed upon between the parties and there is nothing to suggest that he same as executed by fraud, misrepresentation or under duress or coercion.

8.         As far the question of maintainability of the applications under section 12(2), C.P.C. is concerned, it may be noted that consent decree was passed in pursuance of the compromise arrived at between the parties. The compromise decree was acted upon by the petitioners as they deposited four quarterly instalments as agreed upon in the compromise and thereafter they defaulted in payment of further instalments. Had the petitioners been aggrieved of consent decree, they would have challenged the same in appeal. Since, no appeal was filed against decree hence, it attained finality. It appears that the petitioners, in order to avoid payment of remaining instalments filed afterthought applications with mala fide intentions. The consent decree did not suffer from fraud, misrepresentation or want of jurisdiction, therefore, the same was not amenable to challenge under section 12(2), C.P.C. Thus the applications were not maintainable as none of the ingredients for challenging the validity of decree as contemplated in section 12(2), C.P.C. was available to the petitioners. [Underlining is mine] .

ii.          Wazir Hussain v. Abdul Rehman through legal heirs and another [2002 YLR 1600] wherein it was held as follows:---

"21.      In the arena of civil Law, fraud also include improper means resorted to as a means to obtain a benefit or acquire a right which otherwise was not available to a person. The fraud is act of dishonesty which is inferable from the evidence on record and circumstances of the case.

iii.         Land Acquisition Collector Tarbella Dam Resettlement Organization, WAPDA, Ghazi and 2 others v. Hikmat Khan and another [1996 MLD 1587] wherein 'fraud' was defined in juxtaposition of its dictionary meaning in the following words:---

"9.        In order to set the main controversy stemming from the alleged fraud at rest it is necessary to ascertain the meanings of the expression 'fraud'. This expression has been defined in section 17 of the Contract Act but the definition having been made in a particular context is not exhaustive, therefore, its Dictionary meanings will serve the purpose and fill up the vacuum. According to Black's Law Dictionary; revised Fourth Edition, "fraud" means "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 to surrender a legal Eight; 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 A 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"." [Underlining is mine].

iv.         Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others [1994 SCMR 782] wherein the Hon'ble Supreme Court of Pakistan while, observing that fraud vitiates even the most solemn proceedings, it was held that court of general jurisdiction even through the exercise of 'suo motu' powers can competently re-call the decrees procured from the courts by way of playing fraud. The relevant observations read as follows:---

            "Lastly, we are conscious of the general principle that fraud vitiates even the most solemn proceedings and that the courts of general jurisdiction are competent to suo motu recall decrees obtained from it by fraud, as held in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) and ordinarily we would have remanded the case to the trial Court, for further proceedings, in the matter, but as the claim of the plaintiff is fraudulent which is apparent from the record, the remand of the case in our view would be sheer wastage of time and merely an exercise in futility."

v.         Muhammad Nawaz Khan v. M. Khan and 2 others [2002 SCMR 2003] wherein the Hon'ble apex court while, discussing the rights and obligations of parties locked in litigation and third party's interest in the subject matter of litigation and keeping in view the 'doctrine of lis pendens' it was held as under:---

            "....Section 52 of the Transfer of Property Act, 1882 protects the rights of the parties in the property subject-matter of litigation and pending such litigation neither party can deal with the property under litigation in a manner to affect the right of his opponent and thus the principle of lis pendens would be applicable to the transfers trade pendente lite unless the subsequent purchaser established that he was a transferee for value and had paid price in good faith without notice of the interest of a third party cannot defeat the right of prior purchaser. However, a bona fide purchaser for value is protected by section 41 of the Transfer of Property Act, 1882, which reads as under:

"41.      Transfer by ostensible owner.--- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."

            The essential ingredients for the application of section 41 ibid would be (a) that the transferor was the ostensible owner; (b) the transfer was made by consent express or implied of the real owner; and (c) the transfer was for consideration, and (d) the transferee while acting in good faith had taken reasonable care before entering into the transaction.

27.       In contra, Mr. S. Ali Bin Adam Jafri, learned counsel for respondent No.1, vehemently contended that the application under section 12(2), C.P.C. besides misconceived, misleading is not maintainable under law. Per learned counsel, neither any 'fraud', 'misrepresentation' and/or 'want of jurisdiction' has been alleged in the application under section 12(2), C.P.C. nor otherwise, fraud was played upon the Court in passing of the 'consent decree'. Mr. S. Ali Bin Adam Jafri, further urged that neither the applicant has denied the signatures on his 'written statement', vakalatnama of his counsel, sale agreement dated 12 August, 2008 nor has placed any materials on record. Almost all the averments/assertions made in the plaint have been admitted by the Applicant in his 'written statement' having been duly signed and verified on oath before the 'oath commissioner' of this court without recording any protest. Per learned counsel under law one cannot approbate and reprobate.

28.       Learned counsel for respondent No.1, strenuously contended that the case as pleaded by the applicant does not fall within the ambit of section 12(2), C.P.C. No requisite details/particulars of 'fraud' and/or 'misrepresentation' have been given in the application under section 12(2), C.P.C. Ex-facie, the events allegedly happened are the events prior to the proceedings and not during the proceedings as such the application is not maintainable.

29.       Mr. Khalid Shah learned counsel for the respondent No.2 [Mortgagee-Bank] has fully supported the contentions raised by learned counsel for respondent No.1. Mr. Khalid Shah, contended in vehemence that the instant application under section 12(2), C.P.C. besides not maintainable is manifestly an attempt aimed at to deprive the respondent No.2 [Mortgagee-Bank] from the benefits of 'final decree' obtained by the bank long ago [i.e. on 22-4-2010].

30.       Mr. Khalid Shah besides praying for dismissal of section 12(2), C.P.C. application also prayed for/sought direction to the Nazir of this court for releasing the amount already deposited by respondent No.1 in compliance with court's order. Per learned counsel, the bank would have no objection if the original documents of subject property, on deposit with Nazir, are released to the respondent No.1, however only after receiving the amount by respondent No.2 Bank.

31.       Heard learned counsel for the parties.

32.       Before proceeding further and being relevant, I would like to reproduce herein section 12(2), C.P.C. which reads as follows:---

"12. Bar to further suit.---(1) …………………………………………..

            [(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]."

33.       The provision of section 12(2), C.P.C. can only be pressed into service where any 'fraud' or 'misrepresentation' is played upon the court during the 'proceedings' and not otherwise. In the present case, it is worth to note that the application under section 12(2), C.P.C. so framed and filed, no fraud/misrepresentation even has been alleged. The grounds alleged in the application under section 12(2), C.P.C. besides alien are not requisite grounds for assailing the decree under section 12(2), C.P.C. 'Fraud' or 'misrepresentation' is not only be leveled but also proved. In the instant case 'fraud' or 'misrepresentation' has not established. The provisions of section 12(2), C.P.C. under circumstances, of the case are not attracted.

34.       At this juncture, it will be useful to reproduce herein section 17 of the Contract Act, 1872 [IX of 1872] which defines 'fraud' in the following words:--

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

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

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

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

(4)        any other act fitted to deceive;

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

35.       In the case of the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others [PLD 1975 SC 331], the Hon'ble Supreme Court of Pakistan while, dilating upon the question of orders which are void and orders which are voidable it was observed as under:---

            "....that the order made by a Court, Tribunal or other authority acting without jurisdiction as regards subject-matter, pecuniary value or territorial limits are void ab initio, whereas the order obtained by fraud is not void but only voidable, and it remains operative as long as it is not rescinded or recalled by a competent authority in proper proceedings. The Supreme Court further expressed the view as under:--

            "while it is true, as has been so often stated, that fraud vitiates all proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed questions of law and fact which can only be established in an elaborate inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it...."

36.       Likewise, in the case of Lal Din and another v. Muhammad Ibrahim, [1993 SCMR 710], while dealing with the question of fraud, the Hon'ble Supreme Court of Pakistan observed as follows:---

"5.        …. Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree subject to the exception that a mere falsity of a claim to the knowledge of the person putting forward the claim would not be ground for setting aside the decree on the ground of fraud. Even where a claim is false there is a false representation made to a Court but this cannot by itself be a ground for setting aside a decree because if such ground was accepted there would be no end to litigation for every decree which does not proceed on some legal ground alone would be liable to be challanged on the ground that the party has deliberately putforward an untrue case. If it was untrue it would be untrue, at least in most cases, to the knowledge of the party." [Underlining is mine].

37.       Moreover under law particulars of 'fraud' and 'misrepresentation' must be given. In this regard Order VI, Rule 4, C.P.C. is relevant which reads as follows:---

"4.        Particulars to be given where necessary.-- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."

38.       Significantly in the present case almost all the averments/ assertions made in the plaint have been admitted by the applicant in his 'written statement'. Such admissions made by the applicant, indeed, are binding upon the Applicant in view of Article 113 of Qanun-e-Shahadat. Article 113 of Qanun-e-Shahadat Order, 1984 [P.O. No.X of 1984] reads as follows:---

"113. Facts admitted need not be proved.--- No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:

            Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."

39.       Further, in rebuttal of the application under section 12(2), C.P.C. both the respondents have filed their detailed 'counter affidavits', wherein not only the assertions made in the application under section 12(2), C.P.C. were emphatically denied but it was also reiterated therein that 'consent order' and 'decree' passed in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee & Bank Al-Habib] are valid, proper and have not been obtained by playing any fraud upon the court. In rebuttal no 'affidavit-in-rejoinder' was filed by the applicant. As such the averments made in the 'counter-affidavits' have gone unchallenged/ uncontroverted. On this aspect of the matter reliance is placed on the case of Jehan Khan v. Province of Sindh and others [PLD 2003 Kar. 691] wherein while dilating upon the question of a categorical statement gone unchallenged, it was observed as follows:---

            "This categorical statement has gone unchallenged and un-rebutted as no affidavit in rejoinder was filed by the petitioner and therefore, the facts narrated above have to be accepted as true."

40.       No doubt all the documents referred to hereinabove including 'Vakaltnama' of Sajid Latif was signed by the Applicant as such the consent decree passed in the case in hand, in my considered view, is not a result of any fraud or misrepresentation particularly when the counsel per Vakalatnama is authorized to compromise the suit. In this regard reliance is placed on the case of Dr. Ansar Hassan Rizvi v. Syed Mazahar Hussain Zaidi [1971 SCMR 634] wherein while placing reliance on AIR 1930 PC 158 it was observed as follows:---

            "The contention that the Advocate of the petitioner had no authority to compromise the matter on behalf of the petitioner is untenable. The Privy Council has held in the case of Sourendra Nath Mitra and others v. Tarubala Dasi (AIR 1930 PC 158), that unless there is specific authority to the contrary, and in the absence of a written authority such as a Vakalatnama an Advocate has implied authority of his client to settle the suit. It has not been contended that the learned Advocate concerned held any Vakalatnama which expressly or impliedly debarred him from entering into a compromise. Nor anything has been produced to show that the learned Advocate's implied authority was countermanded by the express direction of his client." [Underlining is mine].

41.       Apart from the above, the consent decree passed in the case in hand is on the basis of and in view of admissions expressly made by the applicant in his 'written statement'. The application under section 12(2), C.P.C., on this score as well is misconceived and not maintainable. Regarding 'fraud' and 'misrepresentation' the onus of proof is on the applicant to have substantiated that the 'consent decree' obtained by respondent No.1 [viz. Zaheer Abbas] was by playing of any fraud and/or misrepresentation. The pleas urged in the application under section 12(2), C.P.C. neither have been proved nor otherwise, fall within the orbit of section 12(2), C.P.C. As far as the Vakalatnama of the counsel is concerned admittedly, it has been signed by the applicant. Per Vakalatnama the counsel is also empowered to compromise the suit. Against the counsel no 'fraud' or 'misrepresentation' has been urged even remotely. The applicant in support of his contention has filed no affidavit of his counsel.

42.       On this aspect of the matter reference can be made to the case of Mobile Eye Service of Pakistan Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another [PLD 1992 Karachi 183] wherein inter alia regarding authority of the counsel it was observed as follows:---

"5.        …. Mere failure on the part of the counsel to disclose that he holds no authority from his client A to enter into a compromise on his behalf can hardly provide a ground for review of a consent order based on such compromise. In such a case, there would neither be a mistake or error apparent on the face of the record nor would there be discovery of any new material calling for review of the order. The other provision invoked by the applicant is section 12(2) of C.P.C., which has been newly added thereto by Ordinance X of 1980. Under the said provision the validity of a judgment, decree or order on the plea of fraud or misrepresentation or want of jurisdiction can be challenged by a person aggrieved by such judgment, decree or order. "Fraud" has been defined by Ballentine's Law Dictionary, Third Edition, at page 496 to mean, "deceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right. Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth or other device contrary to plain rules of common honesty". "Misrepresentation" has also been defined by the same dictionary at page 807 to mean "the statement of an untruth. A misstatement of fact, which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists." As it would appear from the above definitions, the two words are more or less synonymous. In this regard it may be pointed out that the only allegation made in the present application is that, Mr. Hassan Akbar had no authority from respondent No.1 to enter into the said compromise on her behalf. But, there is nothing in the application even to remotely suggest that Mr. Hassan Akbar, while giving his consent, was motivated by any consideration of fraud, or that he had colluded in any manner with the petitioners to give his consent to the said compromise. There is also nothing to point out that any misrepresentation was made by Mr. Hassan Akbar, notwithstanding the fact that he had no authority to enter into a compromise on behalf of respondent No.1, since Mr. Hassan Akbar's authority to enter into a compromise on behalf of his client was not questioned at the relevant time. Consequently, in our opinion, reference to the provisions of acted to section 12(2), C.P.C. is misconceived and such provisions are not attracted the facts of the present case. Section 151, C.P.C. which is the third section invoked by the respondents in the present application refers to the inherent powers of the Court to make such order as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Court. Such powers can be invoked by the Court whenever circumstances arise for which no express remedy can be found in the Civil Procedure Code. It may further be pointed out that section 151, C.P.C. does not confer any new power on the Courts but it merely saves their inherent powers to pass appropriate orders to meet the ends of justice or to prevent abuse of the process of the Court. However, the Courts have to act within the ambit of their jurisdiction. No doubt, in the case of a compromise, the order may be recalled by the Court under section 151, C.P.C. in the same proceedings on the ground of Traqd, but again, fraud must be clearly established, which does not appear to be the case in the present case, as pointed out earlier."

6.         .....In Mumtaz Ali v. Haji Muhammad Ramzan 1980 CLC 331 a consent decree passed on the basis of a compromise was challenged in an appeal before the High Court. It was observed that even if it was assumed that fraud was practised on the appellant, the appeal would nevertheless be incompetent since the order impugned was passed on the basis of a compromise and was a consent order. Similarly, in Abdul Wahab v. Habib Ali PLD 1969 Lah. 365, the Court declined to entertain a Letters Patent Appeal against a consent order passed in a writ petition. It was observed in this case that: "Once a mode (procedure) is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect to. A necessary corollary of this rule will be that the same parties are estopped from subsequently challenging the mode of decision in an appeal". [Underlining is mine]."

43.       The Applicant has absolutely failed to point out any single stance and/or ingredient of alleged 'fraud' and 'misrepresentation'. The only allegation is of 'duress' allegedly exerted by the respondent No.1 upon the applicant. The allegations so levelled by the applicant are totally contrary to the record. Thus, I am of the considered opinion that the 'consent order' followed by 'decree' in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] is not open to any interference. Consequently, in view of the above, the Judicial Miscellaneous under section 12(2), C.P.C. bearing JM No.31 of 2012, stands dismissed, however, with no order as to costs.

NAZIR REPORT DATED 18-5-2013
[PRESENTED ON 20-5-20131]

44.       Per Nazir's report, filed in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib], the decree holder had deposited a call deposit bearing ACDR No.395037 dated 6-8-2012 for Rs.3,40,00,000 [Rupees Three Crores Forty Lacs only] and the same, indeed, was accepted, however, subject to approval of this Hon'ble Court on 7-8-2013. Per report, the amount of Rs.3,40,00,000 [Rupees Three Crores Forty Lacs only] deposited by Respondent No.1, has already been invested in National Savings by the Nazir of this court, however, till further orders.

45.       While advancing arguments on the Nazir's report, Mr. Jamshed Malik, learned counsel for the applicant [defendant No.1-judgment debtor] also made reference to order dated 13-5-2013 passed in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee & Bank Al-Habib]. Being relevant order dated 13-5-2013 is reproduced as under:--

"13-5-2013

            This suit was disposed of vide order dated 20-6-2012 through compromise and plaintiff' was directed to deposit amount within 45 days. Counsel for defendant No.1, submits that since plaintiff failed to deposit the amount within stipulated period, therefore, suit is dismissed automatically. Nazir is directed to submit report as to when amount was deposited and whether same was deposited within time or not?"

46.       In compliance with the above order Nazir of this court thereafter submitted his report referred to hereinabove. Mr. Jamshed Malik, learned counsel for applicant [defendant No.1-judgment debtor] argued that though he has assailed the 'consent order' and 'decree' passed on 25-6-2012 by way of application under section 12(2), C.P.C. bearing JM No.31 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib Ltd.] but at the same time the Applicant can also claim the benefits accrued in his favour under terms and conditions of the consent order/decree. The relevant terms and conditions of compromise read as follows:---

"(1)      The Plaintiff shall deposit balance sale consideration of Rs.34 million within 45 days hereof with the Nazir of this Court.

(2)        Once this amount is deposited the defendant No.2 shall place before the Nazir of this Court all the original title documents of the subject property.

(3)        Nazir shall release Rs.29,063,802 in favour of the defendant No.2 in full and final satisfaction of defendant No.2's claim whereafter the defendant No.2 shall be bound to execute redemption deed or other necessary documents to redeem the property. The defendant No.1 thereafter would execute conveyance deed in respect of the subject property in favour of the plaintiff and all such expenses of registering the conveyance deed shall be borne by the plaintiff whereafter balance amount shall be paid to the defendant No.1.

(4)        In case the defendant No.1 fails to execute conveyance deed, Nazir of this Court shall execute conveyance deed in favour of the plaintiff but in that case the defendant No.1 shall not be entitled for payment of remainder unless otherwise directed by the Court through further order.

(5)        In case the plaintiff fails to deposit balance sale price within 45 days the suit shall stand dismissed. 50% of the token amount shall stand forfeited and 50% would be refunded to the plaintiff from the sale proceed as the defendant No.1 shall be at liberty to proceed with the decree in his favour in accordance with law.

(6)        Upon receipt of amount so suggested, the defendant No.2 shall withdraw the appeal and further record satisfaction of decree before Banking Court. [Underlining is mine]."

47.       Per learned counsel, the amount of Rs.3,40,00,000 has not been deposited per 'clause-1' of the consent order dated 20-6-2012 and decree passed on 25-6-2012 as such the respondent No.1 's suit bearing No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] in terms of 'clause-5' stands dismissed and now the applicant [defendant No.1-judgment debtor] is the decree holder.

48.       Against this, Mr. S. Ali Bin Adam Jafri, learned counsel for respondent No.l [plaintiff-decree holder] forcefully argued that the 'requisite amount' in terms of 'clause-1' of the 'consent order' has already been deposited with the Nazir of this court. Per learned counsel the 'consent order' was passed on 20-6-2012 and 'decree' was prepared on 25-6-2012. The target date w.e.f. 21-6-2012 [Saturday] was 4-8-2012 which was also Saturday and the banks were knowingly closed. Similarly on 5-8-2012 it was 'Sunday'. Under circumstances, call deposit bearing ACDR No.395037 of 6-8-2012 in the sum of Rs.3,40,00,000 was prepared in the name of Nazir of this court. As such the amount was thus deposited within 45 days. Even otherwise, since the decree has passed on 25-6-2012 and if, the time limit of 45 days is counted from 26-6-2012, then also the requisite amount was rightly deposited within 45 days.

49.       Mr. Khalid Shah, learned counsel for respondent No.2 argued that 'consent order' and 'decree' dated 25-10-2012 was immediately assailed on 27-6-2012 by the Applicant by means of the above J.M. No.31 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib]. On 29-6-2012 restraining order was also obtained against disbursement of the amount. Such 'interim order' passed on 29-6-2012 is still operating as such the 'requisite amount' could be released to the respondent No.2 Bank who has already procured 'final decree' on 16-2-2010 for recovery of Rs.21,441,099 plus cost and cost of fund as specified by 'SPB' from the 'date of default' till realization of decretal amount through sale of the mortgaged property [subject property] from the Banking Court-1 at Karachi.

50.       Heard.

51.       As far as the contention of Mr. Jamshed Malik, regarding dismissal of the suit bearing No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] is concerned, the same is self-destructive as on one hand the Applicant [Defendant No.1-Judgment Debtor] is challenging the 'consent decree' passed on 25-6-2012 through the application under section 12(2), C.P.C. and on the other hand the applicant claims to be a 'decree holder' after lapse of 45 days.

52.       The stand taken by learned counsel for the Applicant is not only self-destructive but also self-clashing. Not only this the applicant is also guilty of approbation and reprobation by taking in-consistent pleas. Of course, which leads to the conclusion that the applicant [defendant No.1-judgment debtor] does not have any genuine case. In this regard reliance can be placed on the case of Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Ltd. and 5 others [2006 CLC 342] wherein it was held as under:---

"15.      .... When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, then this act by itself lead to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiff s claim is to be treated as false."

53.       From the record, it is quite evident that the applicant [defendant No.1-judgment debtor] kept himself busy in litigation [i.e. by way of filing cases by himself or through others] ex-facie to frustrate the decree passed in favour of respondent No.2. Such efforts beside calculated seem afterthought. By this way, the respondents particularly respondent No.2 Bank [Mortgagee-Bank] were/was kept under the 'Sword of Damocles'. Manifestly all the terms and conditions of the consent order are interlinked and interdependent. The same cannot be interpreted/read in isolation of each other.

54.       As far as delay in deposit of Rs.34 million [Rupees Thirty Four Millions] is concerned, I am of the considered opinion that there is no delay at all for and in view of the obvious reason, that on 4th and 5th August, 2012 [Saturday and Sunday respectively] banks are closed. The amount was thus deposited on 06th August, 2012 which amount was not only accepted by Nazir of this Court [subject to approval of the court] but was also invested in National Savings.

55.       With regard to this aspect of the matter reliance is placed on the cases i.e: (a) Muhammad Yousaf and 3 others v. Zafarullah and another [1992 SCMR 117 41] and Rahmatullah Khan and another v. Gul Sher and others [PLD 1962 (W.P.) Peshawar 183] and (c) Obaid-ud-Salam and others v. Faiz Muhamamd Khan and others [1987 SCMR 216] wherein the exclusion of the 'day' when the order is passed [sections 8 of General Clauses Act, 1956] and the 'last day' when it is found holiday(s) [sections 9 of General Clauses Act, 1956] has been dilated upon. The relevant observations made therein read as follows:---

(a)        Muhammad Yousaf and 3 others v. Zafarullah and another [1992 SCMR 117]

"6.        ....This is a case not of enactment or contract, but of an order passed by a Judge. The order will therefore have to be construed as to effectuate the intention of the Court, regard being had to the context and the purposes for which the order was passed, not overlooking the need of an equitable interpretation desirable in the interest of the person who has to make the deposit and who should be free from any doubt. Now an order of the court must have some semblance of uniformity with the interpretation which the law would put and equity support in such a case where a time is prescribed for the doing of an act by a statutory enactment. (See Ramchandra Govind Unavne's case (supra). Under Section 8 of the Provincial General Clauses Act, 1956, a date from which the period of time is to be reckoned has to be excluded, while computing the period. See Puran Chand's case and Ramchandra Govind Unavne's case (supra). For the purpose of uniformity, the same interpretation should be given where a Court's order fixes the date from which a period has to commence. The view of the learned Single Judge is therefore appropriate and correct. His interpretation is also equitable and removes all difficulties that may arise in the way of persons who may be called upon by Courts to make such deposits and find themselves in a dilemma when trying to interpret such orders." [Underlining is mine].

(b)        Rahmatullah Khan and another v. Gul Sher and others [PLD 1962 (W.P.) Peshawar 183]

"8         ..... that if an act is to be done within the prescribed period and if the Court is " closed on the last day of the prescribed period, then the act shall be considered as done --- if it is done or taken on the next day afterwards on which the Court or office is open"... . [Underlining is mine]

(c)        Obaid-ud-Salam and others v. Faiz Muhammad Khan and others [1987 SCMR 216]

            "…. by virtue of section 9 of the West Pakistan General Clauses Act (No. VI) of 1956, it was permissible that the deposit could be made on the day next after the public holiday."

56.       Moreover, the 'benefit of doubt' under the scenario of doubt, confusion and ambiguity as the case in hand is also needs to be extended in favour of the respondents.

57.       In view of dismissal of the application under section 12(2), C.P.C. [JM No.31 of 2012] under para 43 hereinabove and disposal of Nazir report dated 18-5-2013 upon reaching the conclusion that the 'requisite amount' [i.e. Rs.3,40,00,000] has been deposited within the prescribed period of 45 days, I direct Nazir of this court as well the parties to promptly and strictly comply with the consent order and decree passed in Suit No.17 of 2012 [Zaheer Abbas v. Asif Mowjee and Bank Al-Habib] without any further delay. Nazir's report 18-5-2013 stands disposed off.

            Office is directed to place copy of this common order in Suit No.17 of 2012.

KMZ/A-29/Sindh                                                                                 Order accordingly.