2025 PLP 312 (CLC)

KHADIM HUSSAIN SOOMRO, J.

The applicant has challenged the validity of the impugned order dated 26.09.2017, passed by this court, on the plea of fraud and Misrepresentation or want of jurisdiction under Subsection (2) of Section 12 Code of Civil Procedure, 1908 ("C.P.C.") by making an application being (C.M.A. No. 2129/2019).

2. The learned counsel for the applicants presented his arguments with particular emphasis on Pages Nos. 14, 15, and 16 of the contested order dated 26.09.2017, which addresses the conversion of an amenity plot into a residential plot. The counsel contends that, despite the applicant's legal representative being present and actively arguing the case, he could not argue the case effectively on behalf of his client. Additionally, Misrepresentation, fraud, and a lack of jurisdictions mar the assailed the order, which resulted from the respondent's counsel failing to adequately record key papers. The counsel invoked precedents such as Mst. Kubra Begum and others v. Mst. Shad Begum and others (1996 SCMR. 2096), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710) and the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 (Supreme Court 331) to bolster his position. The precedent set by the case of Mst. Kubra Begum and others, upon which the learned counsel for the Applicants relies, pertains to the intricate interplay between Article 181 of the Schedule to the Limitation Act, 1908 and its application in proceedings under Section 12(2) of the Code of Civil Procedure (C.P.C.). Meanwhile, the case of Lal Din and another delves into the realm of fraud, where a judgment was procured based on forged documents. However, in the Case of the Chief Settlement Commissioner, the Honourable Apex Court engaged in a profound discourse on the court's authority to recall and review its own order, particularly when such an order was tainted by fraudulent means. Consequently, it becomes evident that the cases cited by the learned counsel are distinct from the peculiar facts and circumstances of the present matter.

3. Undoubtedly, the applicants were active participants when the referred case underwent adjudication. Following due deliberation and hearing of the parties, the court rendered its decision on September 26, 2017, comprehensively addressing the matter of plot conversion in light of the relevant by-laws. Unfortunately, the applicants chose not to challenge the impugned order before the apex court despite any grievances they may have had. Peculiarly, after a lapse of 16 months, the applicants now present their current application (C.M.A. No. 2129/2019), primarily shifting the burden onto their counsel.

4. The principle that the act and omission of the counsel is binding upon the party is well-established in jurisprudence. The party has the right to sue the counsel for damages if the counsel's act or omission was negligent, but this does not absolve the party from the consequences of the counsel's actions in the litigation itself. The Applicants had sufficient time to challenge the decision before the Apex Court. The failure to do so within the prescribed time frame suggests acquiescence or acceptance of the judgment by the Applicants, and the law does not favour those who sleep on their rights. The counsel for the Applicants has failed to point out any illegality, fraud, or Misrepresentation in the impugned order. Without. such allegations being substantiated, there is no basis to challenge the validity of the judgment. The Applicants' right to sue the counsel before the concerned Bar Council or for damages is a separate matter and does not pertain to the validity of the judgment itself. The legal system operates on the premise that the counsel's actions are attributable to the client, and this principle is necessary for the administration of justice. The Applicants' failure to challenge the judgment may also be interpreted as an implicit acceptance of the alleged fallout of the original judgment.

5. A litigant's engagement with an Advocate does not absolve him of his duty to diligently conduct or defend his case before the court. Rather, it imposes an obligation to ensure that the proceedings are meticulously prosecuted or defended. Negligence on the part of the litigant's chosen advocate becomes binding upon the litigant. In this context, reference is aptly made to the Case of Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited (1997 SCMR 926).

6. While the contention that "litigants ought not to bear the consequences of their counsel's negligence" may hold moral appeal, it raises a pivotal legal issue: Should the adverse party be prejudiced and their accrued legal rights be compromised due to the negligence of the Applicants or their legal representatives? It is established that parties aggrieved by negligent acts have the right to seek legal remedies for any wrongful loss. For further elucidation, reference may be made to the proposition of the Apex Court of Pakistan as enunciated in the case of Amanullah Soomro v. P.I.A through Managing Director/Chairman and others (2011 SCMR 1341).

7. Section 12(2) of the Civil Procedure Code may be invoked solely in instances where a judgment, decree, or order has been rendered against an individual oblivious to the proceedings culminating in said judgment, decree, or order. Conversely, when an individual has actively contested legal proceedings or was duly served but elected not to contest, the sole recourse available is to pursue the established legal remedies of Appeal, Revision, Review, or Petition for Leave to Appeal, as delineated by law, rather than resorting to an application under Section 12(2) of the Civil Procedure Code. The privilege of invoking Section 12(2) does not extend to a party who, by virtue of its own omission, finds itself contesting. Similarly, should an individual entitled to invoke Section 12(2) opt for a conventional remedy before the appellate tribunal, he is thereafter precluded from assailing the validity of any decision under the aegis of Section 12(2). The sanctity of Section 12(2) must not be compromised by permitting its use as a stratagem to impugn the integrity of a decision on the grounds of fraud, Misrepresentation, or lack of jurisdiction, especially after the window to challenge such a decision through Appeal, Revision, Review, or Petition for Leave to Appeal has elapsed or been voluntarily relinquished.

8. In light of the preceding, the C.M.A. No. 2129 of 2019 is hereby dismissed. As a corollary to this determination, C.M.As. Nos.13265 and 2130 of 2019 are also hereby dismissed with no further proceedings to ensue therefrom. Each party shall be responsible for its respective legal costs. SA/A-61/Sindh Applications dismissed.