1993 PLP 1319 (MLD)

Arsala Tayyaba Daughter ‑‑ minor (4) Maqsood Hussain Father (5) Raeesa Khatoon Mother. After the death of the deceased Ansar Hussain a sum of Rs.5,000 was paid to the House Building Finance Corporation through Maqsood Hussain, the father of deceased. The said Maqsood Hussain has advised the petitioner No.l to submit application for remission of loan of HBFC to the President of Pakistan as per scheme framed by the Government of Pakistan with regard to the remission of loan for favouring the widows and orphans which is still pending with the concerned authorities. It is the further case of the petitioners that sometime in October 1989 Maqsood Hussain sent a copy of the order in Suit No.1563 of 1977 passed by 2nd Senior Civil Judge, Karachi through Chaudhry Muhammad Ayub Qadri whereby the petitioner No.l came to know about the certain order passed by the Court on the basis of alleged compromise alleged to have been submitted by the respondent and the husband of the petitioner No.

1. It is the further case of the petitioners that during the lifetime late Ansar Hussain had never witnessed about any such happening in Suit No.1563 of 1977 and furthermore Ansar Hussain was ill during the said period and was under treatment of various doctors including Dr. Mubin Akhtar and Dr. Akhtar Ahmed the Neurologist. This document was not accepted by the petitioner No.l and as such the matter was under consideration and settlement with the elder people of the community. When the petitioner had noticed that publication effected in Daily Jang dated 17‑1‑1990 whereby the petitioner had come to know that the client of Mr. Aftab AM intends to purchase the property bearing No.112, Overseas Cooperative Housing Society from the respondent; as such the objections were lodged with Mr. Aftab Ahmed Alvi, Advocate vide letter dated 20‑1‑1990. In these circumstances, the petitioners filed an application under section 12(2), C.P.C. The respondent contested the application. The learned Senior Civil Judge dismissed the application as stated in the earlier part of this order. It has been contended on behalf of the petitioners that the learned Senior Civil Judge made a mistake in not entering into the merits of the case. It was not a summary investigation. In support of his submission, reliance is placed on a case reported as Town Committee, Sujawal v. Hakim Murtaza Khan etc. 1989 MLD 1955. The learned counsel appearing on behalf of the respondent has maintained the contrary. Mr. Bhutto cited the case of Mst. Hamida Begum v. Muhammad Saleem reported in 1988 CLC (Lah.) 2456. The petitioners filed an application under section 12(2), C.P.C. praying therein that the order dated 30‑11‑1977 be set aside being illegal, inoperative and as a result of fraud, misrepresentation and undue influence. The respondent contested the application by filing objections. The learned Senior Civil Judge dismissed the application. He observed that "the compromise was effected in suit in 1977 and Ansar Hussain was alive up to December, 1987. It is, therefore, clear that during his lifetime the deceased defendant never objected or moved any application that any fraud was played with him and his mother and father induced him by putting undue influence to sign the compromise application. Had there been fraud, he would have definitely agitated by making such application. The present application has been moved admittedly after the death of the defendant and under any circumstances it is not believable that the acts of the defendant were not known to his widow and children. No prudent person would believe that if any fraud is committed with the person, he would remain silent for more than 10 years. It is also an admitted position that the compromise application was only signed 6y the defendant and that he had admitted before the Court that whatever was stated in the compromise application was true and correct. It is, therefore, clear that the compromise decree was perfectly framed in accordance with the terms and conditions of the compromise application and that it has attained finality as it was never challenged by the defendant during his lifetime who admittedly was alive for 10 years after such compromise. If such type of applications arc allowed, then there will be no end to litigations". In this view of the matter, the application was dismissed. The first question arises whether it was a summary proceeding and whether the question of fraud or undue influence can be gone into by the learned Senior Civil Judge at that stage of the proceedings. This question has been considered by Mr. Ajmal Mian, J. (now Judge, Supreme Court) in above?-referred Town Committee, Sujawal v. Hakim Murtaza Khan's case reported in 1989 MLD 1955 in which he came to the conclusion, after giving cogent reasons, that "the conclusion arrived at by the learned District Judge, Thatta that the application was not competent in view of Order 21, Rules 97 to 103 has overlooked the fact that after the amendment of section 12, C.P.C. 'the only remedy available to a party, who challenges the decree on the ground of misrepresentation, fraud and want of jurisdiction is by way of an application." I am in respectful agreement with these observations of the learned Judge for the reasons given by him in the said decision. In the case of Mst. Hamida Begum v. Muhammad Saleem cited by Mr. Bhutto, it was held that "the petitioners of the said revision petition could not maintain application under section 12(2), C.P.C., for the said provision of law could only be invoked if a judgment and decree of the Court is vitiated by fraud. It is only the fraud relatable to the proceedings of the Court in which the judgment and decree was passed affecting its validity adversely which can be the basis for challenging it". Now by virtue of the newly‑added subsection (2), suit cannot be instituted to challenge the validity of the judgment, decree or order of a Civil Court on the ground of fraud, misrepresentation or want of jurisdiction. Such remedy can now only be sought by an application to the Court which passed the final judgment, decree or order. No procedure has been prescribed for the determination of such application, nor is any separate remedy indicated against such determination. Where the application is presented, evidence in support and rebuttal of the contents of the application will have to be led. The scheme of the newly‑added subsection is that the Court itself has full jurisdiction to decide all questions relating to fraud, misrepresentation or want of jurisdiction between the parties or their representatives shall be determined by the Court dealing with the application and not by a separate suit. As I am inclined to remand the case, I do not want to deal with the merit of the application as it will prejudice either of the party. Hence in view of the provisions of newly‑added subsection (2), the question of fraud and undue influence raised by the petitioners can be gone into and decided. The learned Senior Civil Judge illegally declined to go into this important aspect of the matter and acting with material irregularity in D dismissing the application in a summary fashion. For the aforesaid reasons, the revision petition is accepted and the impugned order is set aside and the case is remanded to the learned Senior Civil Judge for disposal in accordance with law after affording opportunity to both the parties. H.B.T./R‑226/K?????????? Revision accepted.