2016 C L C Note 5
2016 C L C Note 5
[Sindh (Sukkur Bench)]
Before Muhammad Iqbal Kalhoro, J
MOULA BAKHSH and others----Applicants
Versus
GOVERNMENT OF SINDH through Secretary Revenue Department and 4 others----Respondents
Civil Revision Application No.S-44 of 2009, decided on 29th August, 2014.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Allegation of fraud and misrepresentation---Procedure---Such reparation/remedy could not be sought through a separate suit after the enactment of S.12(2), C.P.C. in view of the bar contained therein---Application for redressal of such grievance containing full particulars of fraud and misrepresentation had to be preferred to the court which had passed the final judgment or decree or order---Provisions of S.12(2), C.P.C. would not be attracted or invoked where fraud or misrepresentation was not alleged with regard to the proceedings pending in the court---Such proceedings would not tantamount to a separate suit but by its nature and scheme it had the same character and features---Court had power to dismiss such application summarily without entering into an enquiry when it was found that same was either non-maintainable or had been filed for ulterior motives--- Issues or points for determination had to be formulated in other cases to afford opportunity to the parties to adduce evidence in support or against their respective claims---Parties were required to lead evidence in support and rebuttal of contents of such application for an elaborate probe with regard to the allegations of fraud or misrepresentation---Court should proceed to frame issues qua the allegations of fraud and misrepresentation and limitation if application appeared to be time barred and record evidence of the parties on such issues and decide the validity of judgment and decree under question---Parties had raised various questions of law and facts, in the present case, which should have been adverted to by the Appellate Court---Appellate Court had allowed the present application without affording any opportunity to the parties to lead evidence in support or rebuttal of their respective claims with regard to fraud and misrepresentation---Procedure adopted by the Appellate Court was alien to the settled law---Controversy between the parties could not be resolved unless a thorough enquiry was conducted by the court to establish such facts---Such intricate questions of facts between the parties could not be sorted out to reach a just conclusion without any evidence with regard to fraud and misrepresentation---Factum of fraud and misrepresentation could not be accepted on the face of it just because same was so alleged in the application---Impugned order passed by the Appellate Court was not sustainable which was set aside---Case was remanded to the Trial Court for deciding afresh in accordance with law---Revision was accepted in circumstances.
PLD 1992 Kar. 323 and 2001 CLC 322 ref.
Abdul Fatah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610 and Muhammad Akram Malik v. Dr. Ghulam Rabbani and other PLD 2006 SC 773 rel.
Shakeel Ahmed Memon for Applicants.
Sarfraz A. Akhund for Respondent No.4.
Mujeeb-ur-Rehman Soomro for Respondent No.5.
Shahabuddin Shaikh, State Counsel.
Date of hearing: 20th August, 2014.
ORDER
MUHAMMAD IQBAL KALHORO, J.---By this order the instant civil revision application filed by the applicants is disposed of.
2. The relevant facts are that one Moula Bux the predecessor-in-interest of the present applicants had filed F.C.S. No.71/1981 for declaration and permanent injunction against respondent Nos.1 to 4 in the Court of 2nd Senior Civil Judge Sukkur, stating wherein that he had purchased agricultural land bearing Survey Nos.32 (3-8), 36 (2-29), 37 (2-27) and 59 (0-36) acres total area (09-20) acres situated in Hamanloi, Taluka Rohri, District Sukkur from its owner Tiko Mal and Kishno Mal both sons of Amano Mal for an amount of Rs.650/- through a registered sale deed dated 01.4.1946. After the purchase of the said land, Pakistan was created by virtue of which all the sales made by Hindu owners were to be confirmed under the Evacuee Laws by the Deputy Custodian Evacuee Property, Sukkur, hence Moula Bux filed an application for confirmation of sale of the said land before him who vide his order dated 15.6.1965 confirmed the same. Moula Bux being uneducated could not get his land mutated in his favour in the record of rights, nonetheless, he remained in cultivating possession and enjoyment of the same since the date of its purchase till his death. It was further averred in the plaint that about one and half month prior to filing of the suit the defendant No.4/respondent No.4 approached the plaintiff to hand over the vacant possession of the land in question which he had purchased from the defendant No.3/respondent No.3 who was allotted the same by the defendant No.2/respondent No.2 to the satisfaction of his claim and such mutation had already been effected in the record of rights. Whereafter the plaintiff after obtaining the relevant copies' pertaining to record of rights in respect of the suit land filed the suit. The said suit was contested by the defendants Nos.3 and 4, who filed their separate written statements wherein they denied the case of plaintiff. The trial Court heard both the parties and after perusing the entire material brought on record by them in their evidence dismissed the suit vide its judgment and decree dated 24.12.2001.
3. The applicants being successor-in-interest of their deceased father Moula Bux, felt aggrieved by and dissatisfied with the judgment of trial Court as such preferred a Civil Appeal No.12/2002 in the Court of learned District Judge Sukkur which allowed the same and set aside the judgment and decree passed by the trial Court viz. IInd Senior Civil Judge Sukkur vide its judgment and decree dated 29.8.2002 and 05.9.2002 respectively, resultantly the suit of the applicants was decreed.
4. The respondents Nos.3 and 4 however, were not satisfied with the judgment and decree passed by the appellate Court hence they filed the Civil Revision Application No.117/2002, which was dismissed in limine by this Court vide order dated 11.12.2002.
5. Averments in the instant application further show that the applicants filed an Execution Application No.01/2003 in Suit No.71/81 (re-numbered as Suit No.30/2001) before the trial Court which was allowed vide order dated 01.12.2003, consequently the decree was transferred to the Collector/E.D.O. Revenue Sukkur for its execution who in compliance of which caused necessary mutation in favour of applicants in the record of rights through entry No.130 dated 18.4.2005.
6. Thereafter the respondents Nos.5(a) to 5(f) filed an application under section 12(2), C.P.C. read with section 151, C.P.C. before the Court of learned District Judge Sukkur on 16.6.2005 against the applicants which by way of transfer came on the file of Learned Ist Additional District Judge Sukkur. The averments made in the application show that actually Sher Khan had purchased the land bearing Survey No.37 (2-27) acres from one claimant namely Shamsuddin in the year 1970 through a registered sale deed having registration No.927 who expired in the year 1991, whereafter, the khata was mutated in the name of his legal heirs on 2.2.1992 vide entry No.79. The plaintiff Moula Bux had not made the legal heirs of Sher Khan (respondents 5(a) to (f)) party in the suit or appeal deliberately and intentionally as such obtained the impugned judgment and decree from the court by way of fraud and misrepresentation of the facts. The respondents being legal heirs of Sher Khan, as soon as came to know about the impugned judgment and decree, filed the application for setting aside the same. It is further stated that deceased Sher Khan was the bona fide owner of said land which he had purchased through registered sale deed and after his death the Foti Khata was changed according to Land Revenue Laws after Jalsa-e-Am was held in presence of Assistant Commissioner Rohri where no one came forward to raise any objection over the mutation in the relevant khata in their favour. It is further maintained in the application that the respondents/legal heirs of deceased Sher Khan are in possession and are enjoying the cultivation of the suit land but the plaintiff namely Moula Bux deliberately, knowingly, willfully and intentionally suppressed the real facts from the trial Court by not joining the Sher Khan or his legal heirs in the proceedings filed by him before the learned 2nd Senior Civil Judge Sukkur and later on in civil appeal before the learned District Judge Sukkur filed by his successors though Sher Khan was alive and khata relating to Survey No.37 (2-27) acres was standing in his favour. It is further claimed by the respondents that since they were not made party in F.C.S. No.71/1981 and in Civil Appeal No.12 of 2002 which was decided in favour of the applicants, they stood condemned unheard to the extent of suit land they are owner of, therefore the judgment and decree obtained through fraud and by suppressing the real facts are neither binding upon them nor sustainable under the law. It is also averred that the respondents/legal heirs of deceased Sher Khan came to know about the impugned judgment and decree one week prior to filing the application in the month of March 2005 when one Shah Dino went to the office of the Mukhtiarkar Rohri to obtain Deh Form-VII of deceased Sher Khan as khata was changed in their favour on 20.2.1992 vide entry No.79, where Mukhtiarkar Rohri informed him that the legal heirs of Moula Bux had obtained judgment and decree from the Court of law whereupon khata appertaining to the suit land was recorded in their favour. Being alarmed by such fact they filed the above application.
7. On the above application, the applicants filed their written objections reiterating the facts already enunciated in the Suit No.71/81. However, in addition thereto they further averred that the suit land is in their possession since its purchase in the year 1946. The impugned judgment and decree were not obtained by their deceased father by practicing fraud on the Court or by making any misrepresentation or concealment of facts in the suit. The legal heirs of Sher Khan had no concern with the said land, therefore, were not necessary party to be joined as defendants. It is further stated that the alleged sale deed produced by the legal heirs of Sher Khan is bogus, fictitious and managed one and they are not the residents of Hamanloi, Taluka Rohri, District Sukkur as claimed by them but are resident of Taluka Salehpat District Sukkur. Further, the legal heirs of Sher Khan have no concern with the suit land as neither they are in possession of the same nor are they resident of Deh Hamanloi, Taluka Rohri, District Sukkur, hence the judgment and decree passed by the court are in conformity with the provisions of law which came by only after ample evidence in respect of their title over the suit land was produced. In the objections the applicants have also stated that the application is not maintainable and has been moved to abuse the process of law in order to cause unnecessary harassment to the applicants/decree holders. In the objections the applicants have also referred to the facts relating to the litigation between the parties which spanned over 23 years and could only be culminated when by order of this Court dated 11.12.2002 the Civil Revision No.S-117/2002 filed by the respondent No.3 against them was dismissed in limine.
8. The applicants in their objections had also raised a question over the claim of the legal heirs of Sher Khan to have acquired knowledge about the judgment and decree in March 2005 by stating that as per their claim they were residents of Deh Hamanloi where the suit land was situated and yet they were pleading ignorance about the proceedings over the said land which were extended for about 23 years; that, according to them, showed that the legal heirs of Sher Khan had suppressed the material facts in order to defraud the court and on such account the application was liable to be dismissed.
9. The learned 1st Additional District Judge Sukkur after hearing the arguments of the parties allowed the said application vide Order dated 09.2.2009, thereby remanding back the matter to the learned 2nd Senior Civil Judge Sukkur for deciding the same afresh after joining the respondents (Lrs of Sher Khan) in the suit who were also directed to file the appropriate application to that effect before the trial Court.
10. The learned counsel for the applicants has contended that the documents produced by the applicants during trial to establish their entitlement over the suit land are genuine as the same have never been challenged. Moreso the sale deed regarding suit land was executed in the year 1946 before the creation of Pakistan as such the presumption of genuineness stipulated under Article 100 of Qanun-e-Shahadat is attached to it. He further contended that the sale in favour of father of the applicants namely Moula Bux was confirmed by the Deputy Custodian Evacuee Property Sukkur Vide Order dated 15.6.1965, which still holds field as it has never been challenged. Per learned counsel the application under section 12(2), C.P.C. was filed malafidely by the respondents 5(a) to 5(f) to frustrate the legal title and character over the suit property which the applicants have been able to defend and maintain after the execution application was allowed resulting in mutation in the khatas relating to the suit land in their favour. He further contended that litigation between the parties continued for about 23 years from 1981 to 2003 over the suit land but surprisingly the respondents have pleaded ignorance of the legal dispute pending between the parties over the said land albeit they claim residence in the same area where the suit land is situated which is unbelievable and shows malafideness on the part of respondents. He further contended that the learned Court summarily decided the application in favour of the respondents without recording evidence to establish as to whether any fraud as alleged by the respondents has been played by the applicants with the Court or not. He lastly prayed for setting aside the impugned order being not sustainable under the law.
11. On the other hand the learned counsel for the respondents Nos.5(a) to (f) contended that no sooner the respondents came to know regarding the change in the khata in favour of applicants in compliance of execution application than they filed the application under section 12(2), C.P.C. for setting aside the judgment and decree passed in their favour. He further contended that claim of the respondents is restricted only to the Survey No.37 (2-27) acres as they are the owners of that property by way of inheritance which was purchased by their father through a registered sale deed dated 31.8.1970 having registration No.927 and subsequently after the demise of their father Sher Khan the Foti khatas were mutated in their favour. Per learned counsel the respondents possess a registered sale deed where as the applicants have only sale agreement purporting to have been executed in the year 1946, which cannot be given preference over the registered sale deed under the law. He further maintained that the impugned order is lawful and cannot be taken exception to. In support of his arguments he relied upon case law PLD 1992 Karachi 323 and 2001 CLC 322.
12. Learned counsel for the respondent No.4 in his arguments has referred to Sub-Articles 7 and 8 to Article 2 of Qanun-e-Shahadat to bring home his contention that the presumption of genuineness attached to a 30 years old document under Article 100 of Qanun-e-Shahadat is not final and the court under certain circumstances may call for proof of it. He further contended that presumption under Article 100 of Qanun-e-Shahadat, howsoever, strong cannot make a document genuine as the truthfulness of a document can only be established or proved through production of reliable evidence in terms of provisions of Qanun-e-Shahadat Order, 1984. He further contended that since the respondents have got a registered sale deed regarding sale of the suit land in pursuance of which the khatas were mutated in their favour as such under sub-article (e) to Article 129 of the Order, the court may presume that the official acts to keep the record of rights in favour of respondents have been accordingly and regularly performed. Per learned counsel, by the remand of the case to the original trial Court, no prejudice would be caused to the applicants but on the contrary they would be given an opportunity to prove their case which earlier in the first round was dismissed. He lastly supported the impugned order and prayed for the dismissal of the instant application.
13. The learned state counsel adopted the same arguments advanced by the counsel for respondents and supported the impugned order.
14. I have heard learned counsel for the parties and have gone through the material available on the record with their assistance and the case laws relied upon by them at bar.
15. In order to appreciate the scope and purpose of application under section 12(2), C.P.C, I would like to add, before examining the contentions raised by the counsel for the respective parties and dilating upon the merits of the case, that prior to the introduction of subsection (2) to section 12, C.P.C., a separate suit was competent to challenge the validity of a judgment and decree or order on the grounds of fraud, misrepresentation or want of jurisdiction. However after the enactment of section 12(2), C.P.C. such reparation/remedy cannot be sought through a separate suit in view of the specific bar contained therein. For the redressal of such grievance an application containing full particulars of the fraud and misrepresentation has to be preferred to the court which passed the final judgment or decree or order. The provisions of the section would not however be attracted or invoked, where the fraud or misrepresentation is not alleged in relation to the proceedings pending in the court. Albeit the proceedings under such application do not tantamount to a separate suit but by its nature and scheme it has the same characters and features. Admittedly the court is empowered to dismiss the application summarily without entering into an enquiry when it finds such application is either non-maintainable or has been filed for ulterior motives however in all other cases the court is required to frame issues or formulate points for determination with an aim to afford opportunity to the parties to adduce evidence either in support of or against their respective claims to establish or otherwise the allegations relating to fraud or misrepresentation, for such allegations need to be proved through an elaborate probe wherein the parties are required to lead evidence in support and rebuttal of the contents of the application. When an application under section 12(2), C.P.C. for setting aside the judgment and decree on the plea of fraud or misrepresentation is filed in the court and is not dismissed summarily on above stated grounds, the court shall proceed to frame the issues qua allegations of fraud and misrepresentation and limitation if application appear to be time barred. The probable issues, inter alia, could be as follows:
1. Whether the decree has been obtained by fraud and misrepresentation?
2. Whether the application is barred by time?
3. What should be the order?
The court, then, shall proceed to record evidence of parties on such issues and decide the validity of a judgment or decree under question.
16. For reliance the following case could be cited. Abdul Fatah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610.
..............while deciding the application under S. 12(2), C.P.C. assailing the validity of a judgment, decree or order on plea of fraud or misrepresentation, evidence in support or rebuttal of the contents of the application, shall have to be led.
17. The Honourable Supreme Court while dealing with the same issue has scholarly observed in the case of Muhammad Akram Malik v. Dr. Ghulam Rabbani and others (PLD 2006 Supreme Court 773) in para 4 as under:-
“....... There is no cavil with the proposition that an application preferred under section 12(2), C.P.C. could have been summarily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out in, such an eventuality such application should not have been dismissed summarily and without recording evidence."
18. In the present case as discussed above the parties have raised various questions of law and facts in their pleadings under section 12(2), C.P.C. which ought to have been adverted to by the trial Court to arrive at a just conclusion qua allegations of fraud and misrepresentation but the trial court after hearing the parties allowed the application without affording any opportunity to the parties to lead evidence in support or rebuttal of their respective claims regarding fraud and misrepresentation. The procedure adopted by the court appears to be alien to the principles enunciated by the superior courts in this regard time and again. The perusal of impugned order shows that the court while deciding the application has not paid heed to the averments made by the applicants in their written objections and has simply been swayed away by the existence of registered sale deed in favour of father of respondents Nos. 5(a) to 5(f) without taking pains to undertake an elaborate enquiry to examine the said document as required under the law. The order also does not manifest that the sale deed executed in the year 1946 in favour of predecessor-in-interest of the applicants and its implications in terms of Article 100 of Qanun-e-Shahadat have been deliberated upon to draw adverse inference against the applicants. To infer practice of fraud and misrepresentation on the part of applicants in obtaining judgment and decree after a long spell of litigation covering 23 years without any material brought on record in this regard has in fact caused miscarriage of justice. I am of the view that the controversy qua the knowledge acquired by the respondents Nos.5 (a) to 5(f) regarding change of khatas in respect of the suit land in favour of applicants in compliance of the order of the Executing Court and obtaining a judgment and decree through alleged fraud and misrepresentation of facts cannot be resolved unless a thorough enquiry, envisaging the chance to the parties to lead their evidence in this connection, is conducted by the Court to establish such facts. Merely on the basis of contents of application under section 12(2), C.P.C. and objections thereon, such intricate questions of facts between the parties cannot be sorted out to reach a just conclusion because in such eventuality the court would be left with no evidence to appreciate deeply the allegations of fraud and misrepresentation. The factum of fraud and misrepresentation cannot be accepted on the face of it just because it is so alleged in the application.
19. Under such circumstances, the impugned order dated 09.02.2009 passed by the learned 1st Additional District Judge, Sukkur is held to be not sustainable under the law which is set aside. As a result whereof the case is remanded back to the Court which passed the final judgment and decree where the application under section 12(2), C.P.C. would be deemed to be pending for decision afresh in accordance with law.
ZC/M-167/Sindh Case remanded.
[Sindh (Sukkur Bench)]
Before Muhammad Iqbal Kalhoro, J
MOULA BAKHSH and others----Applicants
Versus
GOVERNMENT OF SINDH through Secretary Revenue Department and 4 others----Respondents
Civil Revision Application No.S-44 of 2009, decided on 29th August, 2014.
Civil Procedure Code (V of 1908)---
----S. 12(2)---Allegation of fraud and misrepresentation---Procedure---Such reparation/remedy could not be sought through a separate suit after the enactment of S.12(2), C.P.C. in view of the bar contained therein---Application for redressal of such grievance containing full particulars of fraud and misrepresentation had to be preferred to the court which had passed the final judgment or decree or order---Provisions of S.12(2), C.P.C. would not be attracted or invoked where fraud or misrepresentation was not alleged with regard to the proceedings pending in the court---Such proceedings would not tantamount to a separate suit but by its nature and scheme it had the same character and features---Court had power to dismiss such application summarily without entering into an enquiry when it was found that same was either non-maintainable or had been filed for ulterior motives--- Issues or points for determination had to be formulated in other cases to afford opportunity to the parties to adduce evidence in support or against their respective claims---Parties were required to lead evidence in support and rebuttal of contents of such application for an elaborate probe with regard to the allegations of fraud or misrepresentation---Court should proceed to frame issues qua the allegations of fraud and misrepresentation and limitation if application appeared to be time barred and record evidence of the parties on such issues and decide the validity of judgment and decree under question---Parties had raised various questions of law and facts, in the present case, which should have been adverted to by the Appellate Court---Appellate Court had allowed the present application without affording any opportunity to the parties to lead evidence in support or rebuttal of their respective claims with regard to fraud and misrepresentation---Procedure adopted by the Appellate Court was alien to the settled law---Controversy between the parties could not be resolved unless a thorough enquiry was conducted by the court to establish such facts---Such intricate questions of facts between the parties could not be sorted out to reach a just conclusion without any evidence with regard to fraud and misrepresentation---Factum of fraud and misrepresentation could not be accepted on the face of it just because same was so alleged in the application---Impugned order passed by the Appellate Court was not sustainable which was set aside---Case was remanded to the Trial Court for deciding afresh in accordance with law---Revision was accepted in circumstances.
PLD 1992 Kar. 323 and 2001 CLC 322 ref.
Abdul Fatah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610 and Muhammad Akram Malik v. Dr. Ghulam Rabbani and other PLD 2006 SC 773 rel.
Shakeel Ahmed Memon for Applicants.
Sarfraz A. Akhund for Respondent No.4.
Mujeeb-ur-Rehman Soomro for Respondent No.5.
Shahabuddin Shaikh, State Counsel.
Date of hearing: 20th August, 2014.
ORDER
MUHAMMAD IQBAL KALHORO, J.---By this order the instant civil revision application filed by the applicants is disposed of.
2. The relevant facts are that one Moula Bux the predecessor-in-interest of the present applicants had filed F.C.S. No.71/1981 for declaration and permanent injunction against respondent Nos.1 to 4 in the Court of 2nd Senior Civil Judge Sukkur, stating wherein that he had purchased agricultural land bearing Survey Nos.32 (3-8), 36 (2-29), 37 (2-27) and 59 (0-36) acres total area (09-20) acres situated in Hamanloi, Taluka Rohri, District Sukkur from its owner Tiko Mal and Kishno Mal both sons of Amano Mal for an amount of Rs.650/- through a registered sale deed dated 01.4.1946. After the purchase of the said land, Pakistan was created by virtue of which all the sales made by Hindu owners were to be confirmed under the Evacuee Laws by the Deputy Custodian Evacuee Property, Sukkur, hence Moula Bux filed an application for confirmation of sale of the said land before him who vide his order dated 15.6.1965 confirmed the same. Moula Bux being uneducated could not get his land mutated in his favour in the record of rights, nonetheless, he remained in cultivating possession and enjoyment of the same since the date of its purchase till his death. It was further averred in the plaint that about one and half month prior to filing of the suit the defendant No.4/respondent No.4 approached the plaintiff to hand over the vacant possession of the land in question which he had purchased from the defendant No.3/respondent No.3 who was allotted the same by the defendant No.2/respondent No.2 to the satisfaction of his claim and such mutation had already been effected in the record of rights. Whereafter the plaintiff after obtaining the relevant copies' pertaining to record of rights in respect of the suit land filed the suit. The said suit was contested by the defendants Nos.3 and 4, who filed their separate written statements wherein they denied the case of plaintiff. The trial Court heard both the parties and after perusing the entire material brought on record by them in their evidence dismissed the suit vide its judgment and decree dated 24.12.2001.
3. The applicants being successor-in-interest of their deceased father Moula Bux, felt aggrieved by and dissatisfied with the judgment of trial Court as such preferred a Civil Appeal No.12/2002 in the Court of learned District Judge Sukkur which allowed the same and set aside the judgment and decree passed by the trial Court viz. IInd Senior Civil Judge Sukkur vide its judgment and decree dated 29.8.2002 and 05.9.2002 respectively, resultantly the suit of the applicants was decreed.
4. The respondents Nos.3 and 4 however, were not satisfied with the judgment and decree passed by the appellate Court hence they filed the Civil Revision Application No.117/2002, which was dismissed in limine by this Court vide order dated 11.12.2002.
5. Averments in the instant application further show that the applicants filed an Execution Application No.01/2003 in Suit No.71/81 (re-numbered as Suit No.30/2001) before the trial Court which was allowed vide order dated 01.12.2003, consequently the decree was transferred to the Collector/E.D.O. Revenue Sukkur for its execution who in compliance of which caused necessary mutation in favour of applicants in the record of rights through entry No.130 dated 18.4.2005.
6. Thereafter the respondents Nos.5(a) to 5(f) filed an application under section 12(2), C.P.C. read with section 151, C.P.C. before the Court of learned District Judge Sukkur on 16.6.2005 against the applicants which by way of transfer came on the file of Learned Ist Additional District Judge Sukkur. The averments made in the application show that actually Sher Khan had purchased the land bearing Survey No.37 (2-27) acres from one claimant namely Shamsuddin in the year 1970 through a registered sale deed having registration No.927 who expired in the year 1991, whereafter, the khata was mutated in the name of his legal heirs on 2.2.1992 vide entry No.79. The plaintiff Moula Bux had not made the legal heirs of Sher Khan (respondents 5(a) to (f)) party in the suit or appeal deliberately and intentionally as such obtained the impugned judgment and decree from the court by way of fraud and misrepresentation of the facts. The respondents being legal heirs of Sher Khan, as soon as came to know about the impugned judgment and decree, filed the application for setting aside the same. It is further stated that deceased Sher Khan was the bona fide owner of said land which he had purchased through registered sale deed and after his death the Foti Khata was changed according to Land Revenue Laws after Jalsa-e-Am was held in presence of Assistant Commissioner Rohri where no one came forward to raise any objection over the mutation in the relevant khata in their favour. It is further maintained in the application that the respondents/legal heirs of deceased Sher Khan are in possession and are enjoying the cultivation of the suit land but the plaintiff namely Moula Bux deliberately, knowingly, willfully and intentionally suppressed the real facts from the trial Court by not joining the Sher Khan or his legal heirs in the proceedings filed by him before the learned 2nd Senior Civil Judge Sukkur and later on in civil appeal before the learned District Judge Sukkur filed by his successors though Sher Khan was alive and khata relating to Survey No.37 (2-27) acres was standing in his favour. It is further claimed by the respondents that since they were not made party in F.C.S. No.71/1981 and in Civil Appeal No.12 of 2002 which was decided in favour of the applicants, they stood condemned unheard to the extent of suit land they are owner of, therefore the judgment and decree obtained through fraud and by suppressing the real facts are neither binding upon them nor sustainable under the law. It is also averred that the respondents/legal heirs of deceased Sher Khan came to know about the impugned judgment and decree one week prior to filing the application in the month of March 2005 when one Shah Dino went to the office of the Mukhtiarkar Rohri to obtain Deh Form-VII of deceased Sher Khan as khata was changed in their favour on 20.2.1992 vide entry No.79, where Mukhtiarkar Rohri informed him that the legal heirs of Moula Bux had obtained judgment and decree from the Court of law whereupon khata appertaining to the suit land was recorded in their favour. Being alarmed by such fact they filed the above application.
7. On the above application, the applicants filed their written objections reiterating the facts already enunciated in the Suit No.71/81. However, in addition thereto they further averred that the suit land is in their possession since its purchase in the year 1946. The impugned judgment and decree were not obtained by their deceased father by practicing fraud on the Court or by making any misrepresentation or concealment of facts in the suit. The legal heirs of Sher Khan had no concern with the said land, therefore, were not necessary party to be joined as defendants. It is further stated that the alleged sale deed produced by the legal heirs of Sher Khan is bogus, fictitious and managed one and they are not the residents of Hamanloi, Taluka Rohri, District Sukkur as claimed by them but are resident of Taluka Salehpat District Sukkur. Further, the legal heirs of Sher Khan have no concern with the suit land as neither they are in possession of the same nor are they resident of Deh Hamanloi, Taluka Rohri, District Sukkur, hence the judgment and decree passed by the court are in conformity with the provisions of law which came by only after ample evidence in respect of their title over the suit land was produced. In the objections the applicants have also stated that the application is not maintainable and has been moved to abuse the process of law in order to cause unnecessary harassment to the applicants/decree holders. In the objections the applicants have also referred to the facts relating to the litigation between the parties which spanned over 23 years and could only be culminated when by order of this Court dated 11.12.2002 the Civil Revision No.S-117/2002 filed by the respondent No.3 against them was dismissed in limine.
8. The applicants in their objections had also raised a question over the claim of the legal heirs of Sher Khan to have acquired knowledge about the judgment and decree in March 2005 by stating that as per their claim they were residents of Deh Hamanloi where the suit land was situated and yet they were pleading ignorance about the proceedings over the said land which were extended for about 23 years; that, according to them, showed that the legal heirs of Sher Khan had suppressed the material facts in order to defraud the court and on such account the application was liable to be dismissed.
9. The learned 1st Additional District Judge Sukkur after hearing the arguments of the parties allowed the said application vide Order dated 09.2.2009, thereby remanding back the matter to the learned 2nd Senior Civil Judge Sukkur for deciding the same afresh after joining the respondents (Lrs of Sher Khan) in the suit who were also directed to file the appropriate application to that effect before the trial Court.
10. The learned counsel for the applicants has contended that the documents produced by the applicants during trial to establish their entitlement over the suit land are genuine as the same have never been challenged. Moreso the sale deed regarding suit land was executed in the year 1946 before the creation of Pakistan as such the presumption of genuineness stipulated under Article 100 of Qanun-e-Shahadat is attached to it. He further contended that the sale in favour of father of the applicants namely Moula Bux was confirmed by the Deputy Custodian Evacuee Property Sukkur Vide Order dated 15.6.1965, which still holds field as it has never been challenged. Per learned counsel the application under section 12(2), C.P.C. was filed malafidely by the respondents 5(a) to 5(f) to frustrate the legal title and character over the suit property which the applicants have been able to defend and maintain after the execution application was allowed resulting in mutation in the khatas relating to the suit land in their favour. He further contended that litigation between the parties continued for about 23 years from 1981 to 2003 over the suit land but surprisingly the respondents have pleaded ignorance of the legal dispute pending between the parties over the said land albeit they claim residence in the same area where the suit land is situated which is unbelievable and shows malafideness on the part of respondents. He further contended that the learned Court summarily decided the application in favour of the respondents without recording evidence to establish as to whether any fraud as alleged by the respondents has been played by the applicants with the Court or not. He lastly prayed for setting aside the impugned order being not sustainable under the law.
11. On the other hand the learned counsel for the respondents Nos.5(a) to (f) contended that no sooner the respondents came to know regarding the change in the khata in favour of applicants in compliance of execution application than they filed the application under section 12(2), C.P.C. for setting aside the judgment and decree passed in their favour. He further contended that claim of the respondents is restricted only to the Survey No.37 (2-27) acres as they are the owners of that property by way of inheritance which was purchased by their father through a registered sale deed dated 31.8.1970 having registration No.927 and subsequently after the demise of their father Sher Khan the Foti khatas were mutated in their favour. Per learned counsel the respondents possess a registered sale deed where as the applicants have only sale agreement purporting to have been executed in the year 1946, which cannot be given preference over the registered sale deed under the law. He further maintained that the impugned order is lawful and cannot be taken exception to. In support of his arguments he relied upon case law PLD 1992 Karachi 323 and 2001 CLC 322.
12. Learned counsel for the respondent No.4 in his arguments has referred to Sub-Articles 7 and 8 to Article 2 of Qanun-e-Shahadat to bring home his contention that the presumption of genuineness attached to a 30 years old document under Article 100 of Qanun-e-Shahadat is not final and the court under certain circumstances may call for proof of it. He further contended that presumption under Article 100 of Qanun-e-Shahadat, howsoever, strong cannot make a document genuine as the truthfulness of a document can only be established or proved through production of reliable evidence in terms of provisions of Qanun-e-Shahadat Order, 1984. He further contended that since the respondents have got a registered sale deed regarding sale of the suit land in pursuance of which the khatas were mutated in their favour as such under sub-article (e) to Article 129 of the Order, the court may presume that the official acts to keep the record of rights in favour of respondents have been accordingly and regularly performed. Per learned counsel, by the remand of the case to the original trial Court, no prejudice would be caused to the applicants but on the contrary they would be given an opportunity to prove their case which earlier in the first round was dismissed. He lastly supported the impugned order and prayed for the dismissal of the instant application.
13. The learned state counsel adopted the same arguments advanced by the counsel for respondents and supported the impugned order.
14. I have heard learned counsel for the parties and have gone through the material available on the record with their assistance and the case laws relied upon by them at bar.
15. In order to appreciate the scope and purpose of application under section 12(2), C.P.C, I would like to add, before examining the contentions raised by the counsel for the respective parties and dilating upon the merits of the case, that prior to the introduction of subsection (2) to section 12, C.P.C., a separate suit was competent to challenge the validity of a judgment and decree or order on the grounds of fraud, misrepresentation or want of jurisdiction. However after the enactment of section 12(2), C.P.C. such reparation/remedy cannot be sought through a separate suit in view of the specific bar contained therein. For the redressal of such grievance an application containing full particulars of the fraud and misrepresentation has to be preferred to the court which passed the final judgment or decree or order. The provisions of the section would not however be attracted or invoked, where the fraud or misrepresentation is not alleged in relation to the proceedings pending in the court. Albeit the proceedings under such application do not tantamount to a separate suit but by its nature and scheme it has the same characters and features. Admittedly the court is empowered to dismiss the application summarily without entering into an enquiry when it finds such application is either non-maintainable or has been filed for ulterior motives however in all other cases the court is required to frame issues or formulate points for determination with an aim to afford opportunity to the parties to adduce evidence either in support of or against their respective claims to establish or otherwise the allegations relating to fraud or misrepresentation, for such allegations need to be proved through an elaborate probe wherein the parties are required to lead evidence in support and rebuttal of the contents of the application. When an application under section 12(2), C.P.C. for setting aside the judgment and decree on the plea of fraud or misrepresentation is filed in the court and is not dismissed summarily on above stated grounds, the court shall proceed to frame the issues qua allegations of fraud and misrepresentation and limitation if application appear to be time barred. The probable issues, inter alia, could be as follows:
1. Whether the decree has been obtained by fraud and misrepresentation?
2. Whether the application is barred by time?
3. What should be the order?
The court, then, shall proceed to record evidence of parties on such issues and decide the validity of a judgment or decree under question.
16. For reliance the following case could be cited. Abdul Fatah and 8 others v. Nisar Ahmed and 3 others 2003 YLR 2610.
..............while deciding the application under S. 12(2), C.P.C. assailing the validity of a judgment, decree or order on plea of fraud or misrepresentation, evidence in support or rebuttal of the contents of the application, shall have to be led.
17. The Honourable Supreme Court while dealing with the same issue has scholarly observed in the case of Muhammad Akram Malik v. Dr. Ghulam Rabbani and others (PLD 2006 Supreme Court 773) in para 4 as under:-
“....... There is no cavil with the proposition that an application preferred under section 12(2), C.P.C. could have been summarily dismissed if it is without any substance but generally where misrepresentation and fraud have been alleged and prima facie a case is made out in, such an eventuality such application should not have been dismissed summarily and without recording evidence."
18. In the present case as discussed above the parties have raised various questions of law and facts in their pleadings under section 12(2), C.P.C. which ought to have been adverted to by the trial Court to arrive at a just conclusion qua allegations of fraud and misrepresentation but the trial court after hearing the parties allowed the application without affording any opportunity to the parties to lead evidence in support or rebuttal of their respective claims regarding fraud and misrepresentation. The procedure adopted by the court appears to be alien to the principles enunciated by the superior courts in this regard time and again. The perusal of impugned order shows that the court while deciding the application has not paid heed to the averments made by the applicants in their written objections and has simply been swayed away by the existence of registered sale deed in favour of father of respondents Nos. 5(a) to 5(f) without taking pains to undertake an elaborate enquiry to examine the said document as required under the law. The order also does not manifest that the sale deed executed in the year 1946 in favour of predecessor-in-interest of the applicants and its implications in terms of Article 100 of Qanun-e-Shahadat have been deliberated upon to draw adverse inference against the applicants. To infer practice of fraud and misrepresentation on the part of applicants in obtaining judgment and decree after a long spell of litigation covering 23 years without any material brought on record in this regard has in fact caused miscarriage of justice. I am of the view that the controversy qua the knowledge acquired by the respondents Nos.5 (a) to 5(f) regarding change of khatas in respect of the suit land in favour of applicants in compliance of the order of the Executing Court and obtaining a judgment and decree through alleged fraud and misrepresentation of facts cannot be resolved unless a thorough enquiry, envisaging the chance to the parties to lead their evidence in this connection, is conducted by the Court to establish such facts. Merely on the basis of contents of application under section 12(2), C.P.C. and objections thereon, such intricate questions of facts between the parties cannot be sorted out to reach a just conclusion because in such eventuality the court would be left with no evidence to appreciate deeply the allegations of fraud and misrepresentation. The factum of fraud and misrepresentation cannot be accepted on the face of it just because it is so alleged in the application.
19. Under such circumstances, the impugned order dated 09.02.2009 passed by the learned 1st Additional District Judge, Sukkur is held to be not sustainable under the law which is set aside. As a result whereof the case is remanded back to the Court which passed the final judgment and decree where the application under section 12(2), C.P.C. would be deemed to be pending for decision afresh in accordance with law.
ZC/M-167/Sindh Case remanded.
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