P L D 2014 Sindh 374
P L D 2014 Sindh 374
Before Nadeem Akhtar and Shahnawaz Tariq, JJ
MUHAMMAD YOUSUF---Petitioner
Versus
Haji FAIZ MUHAMMAD and others---Respondents
Constitutional Petition No.D-1061 of 2010, decided on 13th March, 2014.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Compromise decree, setting aside of---Ingredients---Fraud and misrepresentation---Scope---Contention of applicant was that respondents had not complied with the terms and conditions of compromise decree---Application filed under S.12(2), C.P.C. was dismissed concurrently---Validity---Parties had settled their dispute outside the court and entered into compromise and suit was decreed by way of compromise---Applicant had failed to establish any fraud or misrepresentation committed by the respondents upon the court---Section 12(2), C.P.C. had been introduced for adequate remedy to the aggrieved party if order or judgment was obtained by way of committing fraud or misrepresentation of facts---Applicant had not alleged any factum of fraud or misrepresentation while passing of impugned decree by the Trial Court---Applicant had adopted wrong path to achieve the task of implementation of compromise decree instead of filing of execution petition after refusal of respondents to act upon the terms and conditions of said decree---Ingredients of S.12(2), C.P.C. were missing in the present case---Applicant could not seek his remedy while invoking constitutional jurisdiction of High Court for implementation of terms and conditions of compromise decree by alleging that same was obtained by committing fraud and misrepresentation of facts---Constitutional petition was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----S. 12(2)---Bar to further suit---Scope---Party should seek his remedy of challenging the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an application to the court which had passed the final judgment, decree or order in earlier suit and not by filing a separate suit.
Petitioner in person.
Allah Bachayo Soomro, Addl.A.G. Sindh.
Date of hearing: 4th February, 2014.
ORDER
SHAHNAWAZ TARIQ, J.---Through instant petition, the petitioner namely Muhammad Yousuf Memon has impugned the judgment dated 15-4-2010 passed by learned IInd Additional District Judge, Badin, whereby he dismissed the Civil Revision Application No.33 of 2009 filed by the petitioner and maintained the order dated 24-8-2009 passed by learned Civil Judge and Judicial Magistrate-I, Matli on the application moved by the petitioner under section 12(2) C.P.C.
2. Relevant facts of the case are that petitioner filed Suit No.4 of 1973 against the respondents which was ultimately decided/decreed in terms of compromise effected between the parties in the year 1975. It is revealed that it was decided in the compromise decree that the parties had agreed to exchange certain survey numbers of their lands and also to pay cash to each other through court as well as directly to the petitioner, but the respondents Nos.1 and 2 neither deposited the agreed amount in court nor mutated the khata in the name of petitioner and even respondent Abdul Khaliq had not paid agreed cash to the petitioner. It is further stated that the respondents Nos.1 to 3 have not complied with the terms and conditions of compromise decree and violated the same with mala fide intention and ulterior motives, hence the petitioner filed application under section 12(2), C.P.C. before the learned Civil Court on the ground that the compromise decree could not be acted upon and was liable to be set aside and the matter may be decided afresh on merits after restoration of the suit.
3. It is further revealed that notice of the application under section 12(2), C.P.C. was issued to the respondents, and the petitioner also filed amended title and legal heir of respondent No.3 namely Raza Muhammad appeared and sought time for filing objections, but he failed to file the same.
4. On the basis of pleadings and application under section 12(2), C.P.C., following issues were framed by the learned Civil Court:--
(1) Whether the compromise decree was obtained on the basis of fraud and misrepresentation of the facts?
(2) Whether the defendants/respondents have not complied with the terms and conditions of the compromise decree and violated the same?
(3) What should the order be?
5. After recording evidence of petitioner/plaintiff and hearing submissions of parties, the learned trial court dismissed the application under section 12(2), C.P.C. vide order dated 24-8-2009. Thereafter the petitioner preferred Civil Revision Application No.33 of 2009, before the court of District Judge, Badin, which also was dismissed by learned appellate court vide impugned judgment dated 15-4-2010.
6. The petitioner has contended that suit filed by him against the respondents was decreed by the consent of the parties with certain conditions pertaining to the subject property, but the respondents have failed to act upon the terms and conditions of the said compromise decree. Petitioner further contended that he has filed application under section 12(2), C.P.C. before the learned Civil Judge-I, Matli for setting aside the main compromise order, but his application was wrongly dismissed. Thereafter he filed civil revision application against the impugned judgment, which also was dismissed by the learned II Additional District Judge, Badin vide judgment dated 15-4-2010. He further submitted that during the passage of long time, the respondents have not agreed for execution of said compromise decree, therefore, in the interest of justice, the main order passed in civil suit as well as in revision application by the appellate court may be set aside and proceedings of main suit may be restored.
7. Learned Addl: A.G. Sindh vehemently opposed the submissions made by the petitioner and has contended that the instant petition is not maintainable under the law as the subject compromise decree was passed by the consent of the parties.
8. We have heard the petitioner in person as well as learned Addl. A.G. Sindh and have scanned the material placed before us properly.
9. From perusal of the record, it has spelt out that petitioner filed a Civil Suit No.4 of 1973 against the respondents which was ultimately decided and decreed in terms of compromise between the parties in the year 1975, whereby the parties have agreed that the land vide survey Nos.90 and 99 situated in deh Tayyab Sahito was given to respondent No.3 Haji Abdul Khaliq and survey No.88 was given to the petitioner and further the respondent No.3 was to pay Rs.500/- more to the petitioner. Further an amount of Rs.1775/- was to be deposited by the respondent No.3 in court and the said amount was to be paid to the respondents Nos.1 and 2 through Court and they have to mutate the khata of S.No.88 in the name of the petitioner, but the respondents neither deposited the said amount in court nor mutated the khata in the name of the petitioner and even Rs.500/- had also not paid to the petitioner.
10. It is further spelt out that the petitioner instead of approaching the learned Civil Court for execution of compromise decree passed in the year 1975 well in time, remained silent for a long period, and thereafter he approached the trial Court by filing application under section 12(2), C.P.C. The learned Civil Court recorded statement of the petitioner and thereafter his application under section 12(2), C.P.C. was declined being not maintainable. The order passed by learned Civil Court was maintained by the learned II Additional District Judge, Badin vide judgment dated 15-4-2010.
11. The petitioner has failed to establish any fraud or misrepresentation duly committed by the respondents upon the Civil Court, while admittedly parties had settled their dispute outside the court and entered into compromise, and consequently the subject suit was decreed by way of compromise.
12. The scheme of section 12(2), C.P.C. has been introduced by the legislature for adequate remedy to the aggrieved party, if the order or judgment was obtained from the concerned court by way of committing fraud or misrepresentation of the facts. In the instant petition, the petitioner has not alleged any factum of fraud or misrepresentation while passing the compromise decree by the trial court, even at present he is aggrieved to the extent of non-compliance of terms and conditions of the said compromise decree.
13. We have come to conclusion that the petitioner has adopted wrong path to achieve the task of implementation of compromise decree and instead of filing of execution application at the relevant time soon after the refusal of the respondents to act upon the terms and conditions of the compromise decree, but remained silent for decades for the reasons best known to him. The language of section 12(2), C.P.C. is crystal clear that 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 in earlier suit and not by filing a separate suit.
14. From the record as well as arguments advanced by the petitioner, the very ingredients of section 12(2), C.P.C. are missing, as such, he cannot seek aid of this Court while exercising extraordinary constitutional jurisdiction for implementation of the terms and conditions of the compromise decree or agitate the said decree to have been obtained under the umbrella of fraud or misrepresentation.
14(sic) Consequently, we are of considered view that the petitioner has failed to make out any case to interfere with the concurrent findings of the courts below, therefore, judgments passed by the courts below do not call for any interference by this court and same are maintained accordingly. Resultantly, instant petition was dismissed being devoid of legal merits.
15. These are the reasons of the short order announced by us on 4-2-2014.
AG/M-59/Sindh Petition dismisse
Before Nadeem Akhtar and Shahnawaz Tariq, JJ
MUHAMMAD YOUSUF---Petitioner
Versus
Haji FAIZ MUHAMMAD and others---Respondents
Constitutional Petition No.D-1061 of 2010, decided on 13th March, 2014.
(a) Civil Procedure Code (V of 1908)---
----S. 12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Compromise decree, setting aside of---Ingredients---Fraud and misrepresentation---Scope---Contention of applicant was that respondents had not complied with the terms and conditions of compromise decree---Application filed under S.12(2), C.P.C. was dismissed concurrently---Validity---Parties had settled their dispute outside the court and entered into compromise and suit was decreed by way of compromise---Applicant had failed to establish any fraud or misrepresentation committed by the respondents upon the court---Section 12(2), C.P.C. had been introduced for adequate remedy to the aggrieved party if order or judgment was obtained by way of committing fraud or misrepresentation of facts---Applicant had not alleged any factum of fraud or misrepresentation while passing of impugned decree by the Trial Court---Applicant had adopted wrong path to achieve the task of implementation of compromise decree instead of filing of execution petition after refusal of respondents to act upon the terms and conditions of said decree---Ingredients of S.12(2), C.P.C. were missing in the present case---Applicant could not seek his remedy while invoking constitutional jurisdiction of High Court for implementation of terms and conditions of compromise decree by alleging that same was obtained by committing fraud and misrepresentation of facts---Constitutional petition was dismissed in circumstances.
(b) Civil Procedure Code (V of 1908)---
----S. 12(2)---Bar to further suit---Scope---Party should seek his remedy of challenging the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an application to the court which had passed the final judgment, decree or order in earlier suit and not by filing a separate suit.
Petitioner in person.
Allah Bachayo Soomro, Addl.A.G. Sindh.
Date of hearing: 4th February, 2014.
ORDER
SHAHNAWAZ TARIQ, J.---Through instant petition, the petitioner namely Muhammad Yousuf Memon has impugned the judgment dated 15-4-2010 passed by learned IInd Additional District Judge, Badin, whereby he dismissed the Civil Revision Application No.33 of 2009 filed by the petitioner and maintained the order dated 24-8-2009 passed by learned Civil Judge and Judicial Magistrate-I, Matli on the application moved by the petitioner under section 12(2) C.P.C.
2. Relevant facts of the case are that petitioner filed Suit No.4 of 1973 against the respondents which was ultimately decided/decreed in terms of compromise effected between the parties in the year 1975. It is revealed that it was decided in the compromise decree that the parties had agreed to exchange certain survey numbers of their lands and also to pay cash to each other through court as well as directly to the petitioner, but the respondents Nos.1 and 2 neither deposited the agreed amount in court nor mutated the khata in the name of petitioner and even respondent Abdul Khaliq had not paid agreed cash to the petitioner. It is further stated that the respondents Nos.1 to 3 have not complied with the terms and conditions of compromise decree and violated the same with mala fide intention and ulterior motives, hence the petitioner filed application under section 12(2), C.P.C. before the learned Civil Court on the ground that the compromise decree could not be acted upon and was liable to be set aside and the matter may be decided afresh on merits after restoration of the suit.
3. It is further revealed that notice of the application under section 12(2), C.P.C. was issued to the respondents, and the petitioner also filed amended title and legal heir of respondent No.3 namely Raza Muhammad appeared and sought time for filing objections, but he failed to file the same.
4. On the basis of pleadings and application under section 12(2), C.P.C., following issues were framed by the learned Civil Court:--
(1) Whether the compromise decree was obtained on the basis of fraud and misrepresentation of the facts?
(2) Whether the defendants/respondents have not complied with the terms and conditions of the compromise decree and violated the same?
(3) What should the order be?
5. After recording evidence of petitioner/plaintiff and hearing submissions of parties, the learned trial court dismissed the application under section 12(2), C.P.C. vide order dated 24-8-2009. Thereafter the petitioner preferred Civil Revision Application No.33 of 2009, before the court of District Judge, Badin, which also was dismissed by learned appellate court vide impugned judgment dated 15-4-2010.
6. The petitioner has contended that suit filed by him against the respondents was decreed by the consent of the parties with certain conditions pertaining to the subject property, but the respondents have failed to act upon the terms and conditions of the said compromise decree. Petitioner further contended that he has filed application under section 12(2), C.P.C. before the learned Civil Judge-I, Matli for setting aside the main compromise order, but his application was wrongly dismissed. Thereafter he filed civil revision application against the impugned judgment, which also was dismissed by the learned II Additional District Judge, Badin vide judgment dated 15-4-2010. He further submitted that during the passage of long time, the respondents have not agreed for execution of said compromise decree, therefore, in the interest of justice, the main order passed in civil suit as well as in revision application by the appellate court may be set aside and proceedings of main suit may be restored.
7. Learned Addl: A.G. Sindh vehemently opposed the submissions made by the petitioner and has contended that the instant petition is not maintainable under the law as the subject compromise decree was passed by the consent of the parties.
8. We have heard the petitioner in person as well as learned Addl. A.G. Sindh and have scanned the material placed before us properly.
9. From perusal of the record, it has spelt out that petitioner filed a Civil Suit No.4 of 1973 against the respondents which was ultimately decided and decreed in terms of compromise between the parties in the year 1975, whereby the parties have agreed that the land vide survey Nos.90 and 99 situated in deh Tayyab Sahito was given to respondent No.3 Haji Abdul Khaliq and survey No.88 was given to the petitioner and further the respondent No.3 was to pay Rs.500/- more to the petitioner. Further an amount of Rs.1775/- was to be deposited by the respondent No.3 in court and the said amount was to be paid to the respondents Nos.1 and 2 through Court and they have to mutate the khata of S.No.88 in the name of the petitioner, but the respondents neither deposited the said amount in court nor mutated the khata in the name of the petitioner and even Rs.500/- had also not paid to the petitioner.
10. It is further spelt out that the petitioner instead of approaching the learned Civil Court for execution of compromise decree passed in the year 1975 well in time, remained silent for a long period, and thereafter he approached the trial Court by filing application under section 12(2), C.P.C. The learned Civil Court recorded statement of the petitioner and thereafter his application under section 12(2), C.P.C. was declined being not maintainable. The order passed by learned Civil Court was maintained by the learned II Additional District Judge, Badin vide judgment dated 15-4-2010.
11. The petitioner has failed to establish any fraud or misrepresentation duly committed by the respondents upon the Civil Court, while admittedly parties had settled their dispute outside the court and entered into compromise, and consequently the subject suit was decreed by way of compromise.
12. The scheme of section 12(2), C.P.C. has been introduced by the legislature for adequate remedy to the aggrieved party, if the order or judgment was obtained from the concerned court by way of committing fraud or misrepresentation of the facts. In the instant petition, the petitioner has not alleged any factum of fraud or misrepresentation while passing the compromise decree by the trial court, even at present he is aggrieved to the extent of non-compliance of terms and conditions of the said compromise decree.
13. We have come to conclusion that the petitioner has adopted wrong path to achieve the task of implementation of compromise decree and instead of filing of execution application at the relevant time soon after the refusal of the respondents to act upon the terms and conditions of the compromise decree, but remained silent for decades for the reasons best known to him. The language of section 12(2), C.P.C. is crystal clear that 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 in earlier suit and not by filing a separate suit.
14. From the record as well as arguments advanced by the petitioner, the very ingredients of section 12(2), C.P.C. are missing, as such, he cannot seek aid of this Court while exercising extraordinary constitutional jurisdiction for implementation of the terms and conditions of the compromise decree or agitate the said decree to have been obtained under the umbrella of fraud or misrepresentation.
14(sic) Consequently, we are of considered view that the petitioner has failed to make out any case to interfere with the concurrent findings of the courts below, therefore, judgments passed by the courts below do not call for any interference by this court and same are maintained accordingly. Resultantly, instant petition was dismissed being devoid of legal merits.
15. These are the reasons of the short order announced by us on 4-2-2014.
AG/M-59/Sindh Petition dismisse
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