1985 PLP 414 (MLD)

16‑1‑1978. (Sd.) Additional Administrative Civil Judge, Faisalabad"

2. Subsequently an application was moved by both the plaintiffs for recalling of order, dated 16‑1‑1978 stating that they never consented to withdraw the suit and proceedings conducted on the said date were based on fraud and misrepresentation. Fraud was perpetrated not only upon the plaintiff but upon Court also. This petition under section 151 of the Code of Civil Procedure for recalling order, dated 16‑1‑1978 on ground of fraud, misrepresentation and collusion, was presented before learned Administrative Civil Judge, Faisalabad. Vendee resisted this attempt of the plaintiffs. They, through their reply, controverted the allegations made in the application. Learned Civil Judge who tried the petition framed following issues:‑‑ (1) Whether the petitioners are estopped by words or conduct to file the application? O.P.R. (2) Whether the petition is not proceedable in its present form? O.P.R. (3) Whether petitioners/ plaintiffs validly withdrew the suit or not. If so, what effect? O.P. Parties. (4) Whether there is sufficient cause for acceptance of the application under section 151 C.P.C.? O.P.A. . (5) Relief.

3. Parties produced evidence. Mr. Ghulam Muhammad Malik, Civil Judge, Faisalabad, vide his order, dated 28‑3‑1983 found all the issues (No. 1 to 4) in favour of the petitioners. Consequently order, dated 16‑1‑1978 was set aside and the suit was restored. Against this order Muhammad Yaqoob etc. preferred an appeal/revision in the Court of Ch. Anwar Ali, learned Additional District Judge, Faisalabad. This too was dismissed vide order, dated 27‑6‑1984. Learned Additional District Judge, Faisalabad endorsed the findings recorded by learned Civil Judge. Orders, dated 28‑3‑1983 and 27‑6‑1984 passed by learned Civil Judge and learned Additional District Judge, respectively, have been assailed in constitutional jurisdiction of this Court.

4. I have heard learned counsel for the petitioners and examined the record. Learned counsel has submitted that learned Civil Judge had no jurisdiction to decide the application presented under section 151 C.P.C. for recalling the order of withdrawal of suit which was according to him based on a private settlement. Jurisdiction was questioned on the ground that the jurisdictional value as proposed in the plaint by the plaintiffs exceeded the pecuniary jurisdiction of the learned Civil Judge. It was further submitted that the provisions of section 12(2) of the Code of Civil Procedure were clearly inapplicable. It was also submitted that order, dated 16‑1‑1978 could have only been avoided. through a civil suit and the Court acting under inherent powers was not possessed of any jurisdiction to recall order, dated 16‑1‑1978.

5. Learned Civil Judge in his detailed judgment has recorded a finding of fact that the plaintiffs were not party to the said compromise. It was observed by him : "The learned counsel for the parties argued the case, I heard the arguments. 1 am of the opinion that no so‑called compromise was made between the parties. Had. it be so, it must be in writing because in view of the nature of the disputed property, no oral compromise .could take place. The matter was in the Court of law and 1‑do' not believe that it was so easy for the parties to make such a compromise who were very vigilant about their rights and interests. The signature of the applicants/ plaintiffs on Exh.P.l and on the order sheet, dated 16‑1‑1978 alongwith the sample signature of Muhammad Hassan (applicant) were sent to the expert Mr. Muhammad Yaqoob who was also examined as C.W.1 and who has given a detailed report Exh.C.W.l/1. The said expert has given his opinion "that the questioned signature marked EXh.P.l/1 cannot be co‑related with the admitted /specimen signature marked Exh.D.2/1, Exh.D.III and S/1. In these circumstances, I have come to the conclusion that the signature of Muhammad Hassan on the order sheet, dated 16,‑1‑1978 and on the application filed by Mr.M.L. Arif, advocate on behalf of the applicants are forged and are not in the handwriting of Muhammad Hassan. As regard the status of Mr. M. L. Arif, Advocate, he has himself admitted as R.W.5 that he was not the original counsel of the petitioners /plaintiffs. He signed the plaint as well as the Vakalatnama when the alleged application for withdrawal was given. This fact again fully proves the fraud, misrepresentation and impersonation. Had Mr. M.L. Arif not signed the plaint/ Vakalatnama, there was every possibility that the learned Court might have summoned the original counsel to enquire whether the withdrawal application had been made with the consent of the petitioners/ plaintiffs. By signing the Vakalatnama, it has been posed that Mr. M.L. Arif is the original counsel. The learned counsel for the petitioners/ plaintiffs argued that M.L. Arif Advocate has never worked with him and he has no professional relation with the gentleman. So I do not think Mr. M.L. Arif was legally authorised to do the alleged act. It was incumbent upon him to file his own Vakalatnama". The signatures present on the order sheet also were not proved to be that of Muhammad Hassan. In this view of the matter, the Court concluded that the plaintiffs were not a party to the alleged compromise/settlement nor had they appointed Mr. M.L. Arif, Advocate, to be their counsel. On the basis of said finding, holding, that fraud had been committed and the plaintiffs were not a party to the compromise the Court in proper exercise of its jurisdiction proceeded to recall order, dated 16‑1‑1978. Every Court or tribunal is vested with jurisdiction to retrace its steps and recall orders obtained on the basis of fraud practised upon it. In this case, the vendees are found to have perpetrated fraud not only on the Court but on the plaintiffs also. Such a fraud when noticed, could not be allowed to be perpetuated. The Court, A therefore, was amply justified to rely on its own inherent powers under section 151 C . P . C . to recall such an order which was outcome of grossest fraud. The Supreme Court of Pakistan in case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazal Khan and others P L D 1975 S C 331, observed:‑‑ "It seems to us that while there are cases in which the power of a Court or tribunal of, special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo mote recall or review an order obtained from it by fraud." The civil Court being a Court of general jurisdiction, therefore, was possessed of inherent jurisdiction, to wipe out the effects of fraud and relegate the parties to the position which they occupied before the fraud was committed and the suit withdrawn on the basis of fraudulent acts committed. Defendants never objected to the pecuniary jurisdiction of the Court during the whole period when the petition remained pending before the trial Court. In fact they submitted to the jurisdiction of the Court, produced evidence and addressed arguments. They did every thing except objecting to lack of pecuniary jurisdiction. When the decision went against them and their fraud was fully unearthed, this objection was raised before learned Additional District Judge for the first time. It was found by learned Additional District Judge that since the land subject‑matter of the pre‑emption suit was assessed to land revenue, therefore, its jurisdictional value must in law be calculated on 30 times the land revenue assessed thereon which according to the admission of both the parties was less than Rs.1,

000. Learned Additional District Judge observed:‑‑ "In these circumstances, when the suit land is assessed to land revenue which has not been permanently settled the jurisdictional value of the suit will be 30 times of this land revenue which according to the admission of both the parties will be less than Rs.1,

000. In these circumstances, I find that the learned trial Court had jurisdiction to entertain and decide the application." Jurisdictional value in such like cases is determined by Rules framed under section 3 of the Suits Evaluation Act 1887 by the Provincial Government. Since the land was assessed to land revenue, its juris dictional value must be determined on the basis of 30 times land revenue so assessed. The trial Court, therefore, had jurisdiction to decide the fate of application. Be that as it may, fraud committed by the defendants cannot be, allowed to go unnoticed and be perpetuated upon mere technical plane. Petitioners are not entitled to exercise of any discretion in their favour under constitutional jurisdiction. It is well established that the person who comes to seek equity must come to the Court with clean hands. Petitioner's hands are soiled with fraud and there is no equity in their favour. Even if there had been some irregularity in exercise of jurisdiction by the trial Court, I would not have felt persuaded to exercise equitable discretionary jurisdiction in favour of the petitioners. This constitutional petition, therefore, has no merit to commend, it fails and is dismissed in limine. A.A. Petition dismissed.