2002 PLP 998 (CLC)

Laws Cited

Representation

• ----S. 12(2) read with S.115---Constitution of Pakistan (1973), Art. 199-- Constitutional petition---Ex parte decree obtained by fraud and misrepresentation---Trial Court after recording evidence, dismissed application under S.12(2), C.P.C. which order was upheld by revisional Court---Validity---Report on initial summons was that address of petitioners was not correct---Summons were again issued on old address, but process-server reported that petitioners had refused .to accept service---Both power of attorney of Advocate and written statement on behalf of several petitioners were filed in Court on the same date, but thereafter their counsel did not seriously oppose the passing of decree--- Report of Finger Print Expert stated that majority of thumb-impressions on such written statement and power of attorney were not clear for comparison---Statement of one of the petitioners, which remained unchallenged during his cross-examination, was to the effect that they were not served; some of them were minors and were not living at the address given in the plaint; and they did not appoint anybody as their counsel---Minority of some petitioners at relevant time was admitted by one of the respondents while appearing as witness---Decree under challenge was not passed on merits---Courts below had not considered the entire evidence on record and the summons, from which it was proved that service of petitioners had been effected---High Court accepted application under S.12(2), C.P.C. filed by petitioners and set aside impugned judgments and decrees passed by Courts below with directions that suit would be deemed to be pending and would be decided on merits after proper service of petitioners/defendants.
• Muhammad Aslam Riaz for Petitioners.
• Muhammad Hussain Awan for Respondents.
• 2. Brief facts of the case are that the petitioner filed an application on 24-3-1981 under section 12(2), C.P.C. for seeking annulment of an ex parte decree, dated 23-2-1981 which was procured by Mst. Dollan deceased who was arrayed as respondent No.3 and who has died during the pendency of the writ petition. Respondents Nos.4 and 5 are the legal heirs of Mst. Dollan. The case set up by the petitioners in their application under section 12(2), C.P.C. was that respondent No.3 procured an ex parte decree for 'pre-emption in respect of 154 Kanals and 14 Marlas of land through misrepresentation and fraud. It was stated in the application that petitioners Nos.5 to 17 and 21 never engaged Sh. Abdul Haq Poori, Advocate as their counsel.
• 3. It was stated that petitioners Nos. 18 to 20 were minors and Nizam who was shown as defendant No.5 had died. Further, it was stated that the suit was decreed ex parte with the connivance of Sher son of Bagu who was the real brother of Mst. Dollan deceased respondent. It was also submitted that service of the petitioners was not effected. Therefore, the decree obtained in favour of Mst. Dollan was based on fraud and misrepresentation. The private respondents contested the application. From the pleadings of the parties issues were framed. The petitioner adduced their evidence by producing A.W.1 to AMA and produced documentary evidence Exh.A.l to Exh.A.8. In rebuttal the respondents have examined two witnesses as R.W.1 to R.W.2. The power of attorney in favour of Sh. Abdul Haq Poori, Advocate was sent to the Handwriting Expert who had given an opinion that the impressions of Sher on the present application were not clear for the comparison and impressions marked as D.1, D.2, D.5, D.9, D.10 and D.11, on power of attorney (Wakalat Nama) were identical with the left impression of Sher. It is pointed out that the trial Court in its judgment observed that from the opinion of Handwriting Expert it appeared that Sher A.W.4 had impressed his thumb-marks on the present application for persons, Suba, Rehman, Mapal, Baig son of Karam Ali, Mahmood and Ahmad.
• 4. The learned counsel for the petitioner argued that it was proved from the record that service of the petitioners was not effected but the trial Court as well as revisional Court did not take judicial notice of the summons obtaining on the file. Further, it was argued that after the report of Handwriting Expert that on the power of attorney impressions marked as D.1, D.2, D.5, D.9, D.10 and D.11 were held to be that of Sher A.W.4. According to the learned counsel the logical conclusion from the report of Handwriting Expert was that persons namely Suba, Rehman, Mapal, Baig son of Karam Ali, Mehmood and Ahmad who were the petitioners, they never signed any power of attorney in favour of Sh. Abdul Haq Poori, Advocate. Thus it was added that it proved the case of the petitioners. Arguing further the learned counsel for the petitioners submitted that by misreading the oral as well as documentary evidence on record, the trial Court as well as the revisional Court failed to exercise jurisdiction vested in them.
• I have considered the arguments of the parties. Some of the facts which are admitted between the parties were that the petitioners purchased the land measuring 155 Kanals situated in Chak No.247-JB, Tehsil Chiniot. A suit for possession through pre-emption was filed on 5-3-1980 by Mst. Dollan deceased which was decreed in her favour on 23-2-1981. The decree which is Exh.A.5 shows that for the plaintiffs Sh. Munir Ahmad, Advocate had appeared and for defendants Sheikh Abdul Haq, Advocate appeared. Exh.A.4 is a written statement which was purported to have been filed by Sheikh Abdul Haq Poori, Advocate on behalf of respondents Nos.5 to 17 and 21. Exh.A.6 and Exh.A.7 were the summons which was issued in the suit for pre-emption. Exh.A.6 the summons issued for a date of 17-4-1980 showed that the process-server reported that the petitioners address is not correct and they were living in Faisalabad. Instead of seeking the correct particular summons Exh.A.7 for next date which was 24-5-1980 was issued again on the old address and this time the report of the process-server was that the petitioners have refused to accept the service. No further process was issued and one Sheikh Abdul Haq, Advocate filed power of attorney on behalf of defendants Nos.5 to 17 and 21 on 8-6-1980. This power of attorney was Exh.A.8. On the same date i.e. 8-6-1980 written statement Exh.A.4 was filed by the learned counsel. The written statement as well as the power of attorney was sent to Handwriting Expert. The report of the Finger Print Expert Bureau shows that the majority of the thumb-impressions marked on the written statement and on power of attorney in the suit and the impressions of Sher were not clear for comparison. It was reported that thumb-impressions marked as D.1, D.2, D.5, D.9, D.10 and D.11 on the application were identical with the left impression of Sher son or Sona as per the sample paper. The trial Court, therefore, concluded that Sher one of the petitioners who has appeared as A.W.4 had impressed his thumb-marked on the application for persons namely Suba, Rehman, Mapal, Baig son of Karam Ali, Mehmood and Ahmad. It appears that both the Courts below did not consider the entire evidence brought on record Exh.A.6 and Exh.A.7. The summons produced on record were not considered. Similarly, statement of Sher who appeared as A.W.4 was not considered. Sher petitioner appearing as one of the witnesses categorically stated in his examination-in-chief that the petitioners were not served and that the children of Nizam and Shah Baig were minors ana they lived in Chak No.256-JB. He also stated that.they did, not appoint anybody as their counsel. There was no cross-examination on the question of appointment of counsel nor about the minority of the children of Nizam and Shah Baig. The respondents had also appeared as R.W.2 and admitted that the legal heirs of Nizam lived in Faisalabad and the legal heirs of Shah Baig lived in Chak No.256-JB. He deposed that he had no knowledge about their minority.
• 8. The trial Court as well as the revisional Court failed to exercise jurisdiction in ignoring from their consideration, summons the Exh.A.6 and Exh.A.7. They have also failed to properly appreciate the deposition of A.W.4 and R.W.2. The minority of legal heirs of Nizam and Shah Baig was an admitted fact. The decree which was assailed through the application under section 12(2), C.P.C. was not passed on merit. The application of attorney which was purported to have been given by the defendants Nos.5 to 17 and 21 in original suit was dated 8-6-1980 and surprisingly on the same day written statement was filed by the learned counsel. The petitioners from the evidence brought on record were successful in proving that their service was not effected. Also the legal heirs of Nizam and Shah Baig were minors. The power of attorney filed by Sheikh Abdul Haq Poori, Advocate was not above board as after filing the written statement he did not seriously oppose the passage of decree.

Headnotes / Summary

Judgment & Decree