2020 PLP 111 (CLC)

SHAKEEL AHMAD, J.

This Civil Revision Petition is directed against the judgment dated 23/05/2012, passed by the learned Additional District Judge-II, Bannu, whereby appeal filed by the petitioners, has been dismissed by maintaining the judgment and decree of the learned Civil Judge VIII, Bannu vide dated 20/09/2011.

2. This Petition arises out of a suit for declaration, filed by Plaintiffs Faizullah Khan and Faiz Muhammad (hereinafter called as respondents Nos.1 and 2) against their father Raees Khan (now dead) through their guardian-ad-litum namely Mst. Rahman Bibi, filed a civil suit for declaration on 13-01-1970, claiming that they are owners in possession of the suit property, which was gifted to them by the defendant and that the defendant has got no concern with it and that the property in dispute has equally been distributed between them, vide judgment dated 13-10-1970 and the suit was finally decreed in favour of the respondents Nos.1 and 2.

3. On 02-06-2010, the petitioners filed an application under section 12(2), C.P.C. for setting aside the judgment and decree of the learned trial court on the ground that the same was obtained by practicing fraud and mis-representation of facts, which is pre-judicial to the interest of the petitioners, therefore ineffective upon the rights of the petitioners and requested for revocation/annulment of the decree.

4. The application was resisted by the respondents, who filed their reply on which the trial court again framed the following issues:- (1) Whether the petitioners have cause of action? (2) Whether the petition in hand is barred by time? (3) Whether the petitioners have not come to the Court with clean hands? (4) Whether petitioners are stopped by their own conduct? (5) Whether the decree in Civil Suit No.41/1 instituted on 13-01-1970 was obtained by employment and misrepresentation? (6) Whether petitioners have right in suit property, prejudiced under the impugned order? (7) Whether the petitioners are entitled to relief? (8) Relief?

5. The parties were allowed to produce their evidence and after perusing the same the trial court dismissed the petition, vide judgment dated 20-09-2011. Not contented with the same, the petitioners filed Civil Appeal before the learned District Judge, which was dismissed by the learned Additional District Judge, Bannu vide judgment/order dated 23-05-2012. Hence this Petition without entering into technicalities, the Appeal filed before the District Judge is treated as revision and this revision petition is converted into constitutional petition in the interest of justice.

6. It was argued by the learned counsel for the petitioners that the impugned judgment and decree was obtained by the respondents by playing fraud and misrepresentation of facts to deprive the other legal heirs of the deceased Raees Khan; that findings of the learned lower courts below on the issue of limitation is illegal; that the impugned judgments of the learned trial court has badly affected the rights of the petitioners, therefore liable to be set aside. He lastly argued that amendment in section 12, C.P.C. is procedural in nature, it was retrospectively applicable even to those decrees, which has been passed before its enactment.

7. Conversely, the learned counsels appearing on behalf of the respondents contended that the impugned judgment and decree of the learned trial court was legal and based on sound reason. They next contended that the amendment in section 12 of C.P.C. was brought on 26.03.1980 and it is not applicable retrospectively, which has been passed before its enactment. They further contended that the petitioners were given full opportunity to prove their stance through evidence, but they badly failed, therefore, their petition was rightly dismissed. They lastly contended that the judgment/orders of the courts below dismissing the petition is based on proper appreciation of evidence, which needs no interference.

8. I have heard the learned counsel for the parties at length and have gone through the record with their able assistance.

9. There is no dispute with regard to the facts of the case. The decree which was sought to be set aside by filing the application under section 12(2) of C.P.C., was passed on 13-10-1970. At that time, a separate suit challenging the decree on the ground of fraud, collusion and lack of jurisdiction, was maintainable. However, Section 12(2) was amended and subsection (2) was added by the Ordinance X of 1980, on 26.03.1980.

10. The first question for determination before me is whether the remedy provided by section 12(2) can be availed of in respect of judgments, decrees and orders which has been passed before 1980 or not? It will be advantageous to reproduce subsection (2) of Section 12, C.P.C., which reads as follows:- "When a person challenges the validity of Judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seeks his remedy by moving an application to the court which passed the final judgment, decree or doer and not by a separate suit".

11. Generally speaking, all laws apply prospectively; however, to the exception that laws affecting procedure only are presumed to be retrospective. In this context, reliance can be placed on the Judgment reported as "Adnan Afzal v. Capt. Sher Afzal" (PLD 1969 SC 187), wherein august Supreme Court of Pakistan was pleased to lay down the following principles in the matter of giving effect to procedural statutes:- "It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view on that question relating to jurisdiction over a cause of action, venue, parties, pleadings, and rules of evidence also pertains to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain cases of action may operate retroactively. This is what is meant by saying that change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice then the Courts will not even in the case of a procedure statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Court would favourably incline towards giving effect to such procedural statutes retroactively".

12. From the judgment quoted above, it is clear that the matters relating to the remedy and jurisdiction are usually considered to procedural in nature, for they do not affect the rights of the parties. However, as held by the august Supreme Court in the aforesaid judgment, if retroactive operation of even a procedural statute causes inconvenience or injustice then the Court will not favour an interpretation giving retrospective effect to the statute. This provision was salutary and beneficiary in character and was intended to shorten the litigation by providing a remedy which was more expedient than that of filing of a suit. It does not take away or affect any of the vested rights of the parties but it has the effect of substituting one remedy for another. In this behalf reliance can be placed on the case reported as "Government of Sindh and another v. Ch. Fazal Muhammad and another" (PLD 1991 SC 197), wherein, it was observed that intention of the legislature in amending section 12 by adding subsection (2) was to provide a substitute for the suits against the judgments, decrees and orders obtained by fraud. This brings into bold relief the true nature of the remedy provided by section 12(2). It is, therefore, difficult to agree with the learned counsel for the respondents that section 12(2) does not apply to decrees passed before its enactment. This view finds support from the judgment of Peshawar High Court in Abdur Rauf and others v. Abdur Rahim Khan (PLD 1982 Peshawar 172).

13. Now adverting to the merits of the case, admittedly the impugned judgment and decree passed on 13-10-1970, while the application for setting aside the validity of the judgment was submitted on 25-05-2010, almost about forty (40) years after decree. Though it was contended in the petition that they got knowledge of the decree on 16.05.2009, but petitioners failed to prove the same through evidence, even the sole witness Shah Qamoos (PW-3) did not utter a single word as to when the petitioners got knowledge about the impugned decree. It is not denied that the petitioners Nos.1, 3, 4, 5 are the sons and daughters of the deceased Raees Khan and brother and sister of the respondents and petitioner No.2 is his widow and they being legal heirs of the deceased, did not knew about the impugned judgment and decree. Application under section 12(2), C.P.C. is governed by Article 181 of the Limitation Act, 1908 which provides a period of 03 years for filing a petition under section 12(2), C.P.C., therefore, the learned courts below rightly held the petition to be barred by time.

14. No doubt the courts possessed the powers to set aside its own judgment, decree or final order, fraudulently or collusively obtained, but the petitioner asserting fraud, misrepresentation, must narrate full particular of fraud and misrepresentation not only in his petition but must also prove the same through cogent evidence. Perusal of the statement of Shah Qamoos Khan Special attorney for the petitioners Nos.2 to 5 reflects that he only alleged in one sentence that the decree was obtained by playing fraud, but he failed to prove it through evidence, mere asserting fraud without proof of fraud, is not sufficient. When the suit was filed, admittedly, the petitioners Nos.1, 3, 4 and 5 were minors. The defendant in the suit was their real father. After passing of decree, their father remained alive till 18.04.2009, but he did not challenge the impugned decree during his life time. The record further reveals that the father of the petitioners personally appeared before the learned trial court and got his statement recorded, which was also thumb impressed by him. When the actual donor of the property never challenged the validity of the decree passed against him, then the petitioners have no locus standi to challenge the same. Perusal of the plaint reflects that on 13-01-1970, the respondents Nos.1 and 2 were minors and the suit had been filed through their Guardian namely Mst. Rehman Bibi widow of Abdur Rehman, it was not understandable that how and in what manner fraud was committed by respondents Nos.1 and 2, being minors at that time.

15. It is now settled that this court while sitting in constitutional/revisional jurisdiction is not supposed to interfere in the concurrent judgments of the courts below, unless it is established that the judgments of the two courts below were without jurisdiction or the two courts acted illegally or judgments of the courts below is the result of mis reading or non reading of the evidence on record resulting into miscarriage of justice.

16. Perusal of the findings of the courts below leave no doubt at all that either the same suffer from jurisdictional defect or the result of mis-reading or non reading of evidence or same have been recorded by committing any illegality or irregularity resulting into mis carriage of Justice.

17. For the foregoing reasons, this petition has no force, the same is dismissed with no order as to costs. ZC/126/P Revision dismissed.