P L D 1980 Lahore 477 (PLP)

This is a plaintiff's appeal against the judgment and decree of Mr. Muhammad Hussain Qazi, Additional District Judge, Mianwali by which he maintained the decree of the dismissal of the plaintiff's suit passed by the learned trial Court on 24-5-1974.

2. The facts of the case are that a civil suit was filed by Muhammad Siddique claiming that he had purchased the property of Mst. Sheedi plaintiff which she had inherited from her father. This suit was decreed on 30-7-1954 and a decree purporting to be a consent decree was passed on the basis of the statement of Mst. Sheedi. Three mutations were attested on the basis of this decree but strangely enough Mutation No. 4510 appears to have been attested on 20-5-1962 while Mutation No. 5006 was attested on 8-8-1968. She filed a suit on 22-10-69 for possession on the basis of her title, in which she made a vague reference that the defendants were claiming ownership of the property on the basis of some decree which bad never been passed between the parties. The defendants who are now respondents based their claim on the consent decree. The suit was later on withdrawn by the plaintiff-appellant on 2-12-1972 with permission to file another suit. Thereafter she filed the suit, out of which the present appeal arises, on 18-1-1973.

3. This suit was contested on various grounds which gave rise to the following issues :- "(1) Whether the plaintiff is in possession of the suit land and the suit is maintainable in its present form ? O. P. P. (2) Whether the suit is time-barred ? (3) Whether the description of the suit land is incorrect ? O. P. D. (4) Whether the suit is barred by the principle of res judicata? O .P. D. (5) Whether the plaintiff has not deposited the conditional cost, if so with what effect ? O. P. D. (6) Whether the plaintiff is estopped by his conduct to bring the present suit ? D. P. D. (7) Whether the plaintiff is the owner in possession of the suit land ? O. P. P. (8) Whether the decree dated 30-7-1954 in favour of defendant No. 1 is illegal and void being obtained through fraud and collusion and without consideration ? (9) Whether the Mutations Nos. 4506, 4510, 4511 and 4566 are illegal and void for the reasons stated in the plaint ? (10) Relief."

4. The learned trial Court found issues 1, 7, 8, and 9 against the plaintiff, Issue No. 2 in favour of the defendant while Issues Nos. 3, 4, 5 and 6 were not pressed. As a result of these findings the suit of the plaintiff was dismissed.

5. The learned Additional District Judge, however decided the fate of the appeal only on his finding on Issue No.

2. He held that the suit was barred under Article 95 of the Limitation Act. The earlier suit was filed on the same cause of action on 22-10-1969 while the present suit on 18-1-1973 which means that it was filed after more than 3 years of the earlier suit. Consequently 3 years limitation period barrred the suit.

6. I have heard the learned counsel for the parties. In the earlier suit the plaintiff had stated that the defendant Muhammad Siddique was claiming ownership on the basis of a decree but the plaintiff did never appear in any Court in connection with that litigation nor made any statement nor entered into any transaction nor received any consideration for sale. It was alleged that in .case it was proved that there was some subsisting decree, the same was collusive, without consideration and based on fraud, and as such was liable to be cancelled.

7. Learned counsel for the appellant argued that the limitation under Article 95 could not start running from the date of earlier suit for the reason that in suit there was only a vague allegation about the decree which was based on certain rumour. The plaintiff as a matter of fact came to know about the particulars and terms of the decree only after the filing) of the written statement which was filed on 28-1-1970 and since the suit was filed within 3 years of the date of filing of the written statement, it was within time.

8. Without deciding for the present whether the suit was governed by Article 95 of the Limitation Act, I may straightaway observe that I do not agree with the argument of the learned counsel for the plaintiff that the limitation, whatever it may be, did not start running from the date of the filing of the suit which was based on the same cause of action and was filed with the object of getting the decree cancelled.

9. But this finding is not decisive of this appeal. The question in this case is whether Article 95 as such applied to the facts of the case. This Article provides a for a period of three years to set aside a decree obtained by fraud and the period of limitation starts when the fraud becomes known to the party wronged.

10. It obviously refers to a case where the decree as such '!king based on fraud is voidable at the instance of one of the party to the decree. It is an established proposition of law th?t where the plaintiff is not a party to the decree or to the fraudulent transaction, this Article will have no application. Sunderappa v. Sri Ramulu 30 Mad. 402; Bijoy Gopal v. Krishna Mahishl 34 Cal. 329; Rupa Jogeshett v. Krishnaji 9 Bom. 169 and Mst. Hamida Begum v. Mst. Murad Begum and others P L D 1975 S C

624. It was held in the last-mentioned case that where the deed or instrument is ab initio null and void, it can be treated as a nullity without having to be cancelled or set aside, for example, if an instrument is executed by a person suffering under a legal disability at the time of its execution, say by reason of minority, unsoundness of mind etc. the document would be null and void. If the instrument is executed by a person competent to do so, but it is alleged that he was forced or persuaded to execute the same under coercion, fraud, misrepresentation or undue influence, then it would be voidable instrument in accordance with the principles embodied in sections 19 and 19-A of the Contract Act. The instrument would remain operative as long as it was not set aside by a competent Court.

11. From these authorities it is clear that for so long as a person is not actually a party to a document or to a decree, he will not be bound by it and for this reason it would be unnecessary for him to get it cancelled. His purpose will be served if he merely gets it declared void. The case of a person who was impleaded as a party in a suit and who was impersonated by some body else and a decree was passed on the basis of this impersonation would not be different from the cas~ where a person is not a party to a suit at all. It is not a case of fraud because fraud involves the finding of the plaintiff having done something under the influence of fraud. It would involve actual participation of the party defrauded by the passing of the decree. In the absence of such participation it may be a case of impersonation or matter of fraud on the Court passing the decree but not a case of fraud al such on the plaintiff. Article 95 would not apply to such a case.

12. Even otherwise if it is statutorily necessary to pass a decree after due service of the opposite-party and affording that party an opportunity of being heard, a judgment rendered without service of notice on and without bearing that party would be absolutely void. The difference between the principle of mandatory provision of law and violation of principle of audi alteram partem was considered by me in Allah Ditta v. Member, Board of Revenue (P L D 1976 Lah. 897) and after reproducing the whole of the caselaw I had come to the conclusion that where the violation was of a law providing for the hearing of a party and not violation of principle of audi alteram partem, the order so passed would be absolutely void. T direction regarding passing of a decree after service of defendant, after affording to him an opportunity of filing written statement and producing evidence is enshrined in the Code of Civil Procedure. Consequently al decree passed without any notice to a defendant and without giving hinG right to meet the case of the plaintiff would be absolutely void.

13. I may also refer to a case of the Calcutta High Court Kaliprasanna Singha and others v. Haripada Ghosh Hajra and others (A I R 1931 Cal. 69) in which a suit for possession was filed ignoring an order of the Revenue Authorities. It was held that where a person is prima facie bound by a fraudulent decree, he cannot by suing ostensibly simply for possession ignore that decree and thereby evade the operation of Article

95. But this principle was not applied to the case because it was found that it was not necessary in the circumstances of the case to get the certificated sale by the Revenue Authorities set aside. Reference was made in this connection to Ghunder Nath Choudhury v. Tirthananda Thakur ((1877) 3 Cal. 504) in which it was clarified that Article 95 is applicable to cases where a party has been fraudulently introduced to enter into some transaction, execute some decree or do some other act and desire to be relieved from the consequences of those acts.

14. This principle will not, therefore, apply to the present case where the plaintiff has never actually been a party to the suit though the decree purported to show her as a party to the transaction. 15: It is necessary in the present case to first find out whether actually the plaintiff was or was not a party to the consent decree. If it is established that she was a party to that decree, the other question of bar of limitation might arise but in case it is found that she was not a party to the decree or had never appeared in Court or never gave her consent, the case would not be governed by Article

95. The matter would at most be governed by Article 142 or 144 of the Limitation Act. It was, therefore, necessary for the learned Additional District Judge to give the findings on issues on merits before touching the issue about the bar of limitation. He could decide this issue only in the light of the findings given on the issues on merits.

16. The appeal is, therefore, allowed without any order as to costs. The judgment and decree of the learned Additional District Judge are set aside and the matter is remanded to the appellate Court to decide the entire appeal afresh in accordance with the law. K. M. A. Appeal allowed.