1997 PLP 343 (CLC)

2. Brief facts, as disclosed in the plaint, are that the plaintiffs are legal heirs of late Imamuddin while defendants Nos. l to 5 are brother and sister of one Muhammad Naseem. The property in dispute is a land measuring 460 square yards bearing No.4, Charcoal Area, Liaquatabad. Karachi hereinafter referred to as the property in dispute. It is alleged in the plaint that the property in dispute was allotted to the predecessor‑in‑interest of the plaintiffs who are in physical possession. That in the year 1972, the defendant No.6, namely, K.M.C. granted lease rights which was accordingly registered on 31‑12‑1972. That the predecessor‑in‑interest of the defendants Nos. l and 2 also claimed ownership of the property in dispute on the grounds that he has acquired the same from the Deputy Refugee Commissioner, Karachi. It is admitted in the plaint that several civil and criminal litigations were initiated between the parties. The most important litigation was a suit bearing No.227 of 1976 filed by Muhammad Naseem, predecessor‑in‑interest of the defendants Nos. l and 2 against Mst. Majeeda for cancellation of lease deed dated 23‑12‑1972. The Suit No.227/76 was dismissed on 6th April, 1980 by the Vth Senior Civil Judge, Karachi against which the predecessor‑in‑interest of defendants Nos. l to 5 filed appeal bearing No.232/80 Annexure‑A to the plaint which came up for hearing before the VIIth Additional District Judge, Karachi who vide his judgment dated 13‑1‑1983 allowed the appeal and decreed the lint.

3. The case of the plaintiffs is that the defendants Nos. l to 5 had procured the judgment of learned VIIth Additional District Judge, Karachi in Appeal No.232/80 by misrepresentation and by playing fraud upon the Court. Several instances are alleged in para. 14 by the plaintiffs to show that the misrepresentation and fraud were allegedly committed by the defendants Nos. l to

5. In view of these allegations, the plaintiffs have filed this suit for declaration and injunction with the following prayers: "(a) Declaration that the predecessor‑in‑interest of defendants Nos. l to 5 has obtained Judgment m Appeal No.232/83 from the then VII Additional District Judge, Karachi by fraud and misrepresentations and, therefore, the said judgment is without lawful authority and of no legal effect; (b) Prohibit and restrain the defendants Nos. l to 6 from interfering with the possession of the plaintiffs in respect of Plot No.4. Charcoal Commercial Area, Liaquatabad, Karachi, directly or indirectly themselves or through any other agency by any process and in any manner whatsoever. "

4. It is pertinent to mention here that the plaintiffs after the order of the learned VIIth Additional District Judge, Karachi in Civil Appeal No.232/80 preferred a Civil Revision before this Court which was numbered as R.A. No.69/83. The learned Single Judge of this Court heard the revision and set aside the order of the learned Additional District Judge in Civil Appeal No.212/80 and remanded the case vide its judgment dated 5‑3‑1989 to the learned District Judge Central to decide the matter in appeal afresh after hearing the arguments of all the parties Against this order, defendants Nos. 1 to 5 went before the Supreme Court seeking leave to appeal through C.P.L.A. No.518 K/89. The Hon'ble Supreme Court of Pakistan after following the law laid down in the case of Mst Hitao v. Syed Fazal Rab and others (1870) 13 Moor's Reports of Cases Privy Council 573 as well as the case of Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 converted leave petition into appeal and set aside the judgment dated 5‑3‑1989 and remanded the case to this Court for recording a reasoned order as required under the law Accordingly, this Court reheard R.A. No.69/83 and vide its judgment dated 30‑5‑1991 again remanded the case to the Appellate Court for disposal in accordance with the law.

5. Against the order of this Court dated 30‑5‑1991 passed in R.A. No.69/83, the defendants Nos.1 to 5 again approached the Hon'ble Supreme Court through leave petition and leave was granted vide order dated 26‑11‑1991. In Appeal (250‑K/91) vide its judgment dated 11‑11‑1992 a Full Bench of the Hon'ble Supreme Court was pleased to set aside the order of this Court in R.A. No.69/83. Following is the relevant observation of the Supreme Court:‑‑‑ "The crucial point on which the arguments ‑from both sides were directed is, whether, a party having failed to object to the admission of a piece of evidence which otherwise may be objectionable but suffering from no substantial defect on merits can relying on technicalities succeed in the higher forums in seeking the annulment of the trial or for that matter the exclusion of such evidence. Obviously the recent judgments. by this Court noticed above go against the respondents' position. Learned counsel for the appellant also brought to our notice that the procedure regarding admission of evidence objected to by the respondent's side was also adopted by the said side in leading their own evidence. Learned counsel for the respondents remained unable to contradict this statement on fact but tried again and again that an illegality or even an irregularity committed at the trial in the admission of evidence whether that of the appellant or that of the respondents could not have been ignored by this High Court nor it can be ignored by this Court. We do not agree with such a general statement. The trend of authority is against it. In so far as the present case is concerned the learned counsel again was asked to explain the respondents' conduct is not only failing to raise any objection at the trial stage but had also followed the same procedure to which no objection was raised before the High Court. Not only this when confronted with a very strong probability that both the parties had agreed on such a procedure because none objected to the other departing from the normal practice, learned counsel for the respondents did not dispute this assumption though continued repeating the technical argument ...."

6. I have heard Mr. Sathi M. Ishaque, Advocate for the plaintiffs, Mr. Z.U. Ahmed, Advocate for defendants Nos. l to 5 and Mr. Muhammad Yasin Kayani, Advocate for defendant No.6. The main thrust of the arguments of defendants' counsel is the bar contained in section 12(2), C.P.C. According to Mr. Z.U. Ahmed, since the plaintiffs are seeking setting aside of the judgment passed by the First Appellate Court namely, Additional District Judge, Karachi on the grounds of fraud, misrepresentation and jurisdiction as such the suit is not maintainable in view of the bar contained in section 12(2), C.P.C. He has referred to the case of Government of Sindh and another v. Ch. Fezal Muhammad and another PLD 1991 SC 197 and the case of North‑West Frontier Province Government, Peshawar and another v. Abdul Ghafoor Khan through Legal Heirs and others PLD 1993 SC

418. On the other hand, it is contended by Mr. Sathi M. Ishaque that the plot in dispute is not the same plot which was allotted to the predecessor‑in‑interest of the plaintiffs and that the predecessor -in‑interest of defendants Nos.l to 5 had fabricated the documents and made a false statement before the K.M.C. for obtaining cancellation of lease. He has referred to the case of Muhammad Ilyas v. Hafiz Abdul Malik and 2 others 1991 CLC 1975.

7. Subsection (2) of section 12, C.P.C. provides that where any person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, such person shall seek his remedy by filing an application to the Court which has passed such final judgment, decree or order. This subsection clearly prohibits filing of a separate suit to challenge the validity, of a judgment, decree or order on the ground of fraud, misrepresentation or want of jurisdiction. The Hon'ble Supreme Court has held in the case of Government of Sindh and another PLD 1991 SC 197 that the intention of the Legislature in amending section 12, C.P.C. by adding subsection (2) was to provide a substitute for such a suit against the judgment, decree or order obtained by fraud. In the instant case, the impugned judgment of the learned VIIth Additional District Judge was passed on 13‑1‑1983, thereafter the matter was twicely heard by this Court in Civil Revision No.69 of 1983 and was also heard thrice before the Supreme Court in two different appeals. But on no occasions, the plaintiffs have ever pointed out or alleged the same grounds as of the present plaint. Para. 16 of the plaint which is about the accrual of cause of action is absolutely silent on the point that when these alleged frauds or misrepresentations were committed. In my view, the defendants had an opportunity to raise all these questions before this Court in civil revision as well as before the Supreme Court which they have miserably failed and now they cannot be allowed to have resort to the provisions of section 12(2), C.P.C. for their own acts of negligence or omission. Reference ‑be made to the following para. of the reported case viz., Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197:‑‑‑ "

13. Further, as will appear from the above‑quoted paragraph, the appellants did not plead any such facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under section 12(2), C.P.C. because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of section 12(2), C.P.C. for their own acts of negligence or omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court. This could not be the intention of the Legislature as the same would be against public policy. " In the case of Muhammad Akhtar etc. v. Abdul Hadi etc. 1981 SCMR 878, it was held that after adjudication of dispute between the parties by a competent Court of law; fresh suit to re‑agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law. In view of the said circumstances; order of the trial Court rejecting the plaint in the suit was restored and the order of the High Court was set aside. Even prior to the 1980 amendment in section 12, the Supreme Court has held that even under sections 9 and 11 of the C.P.C. such suits are barred which are filed to challenge the legality and validity of judgments and orders passed on the grounds of fraud or misrepresentation. Reference be made to the case of Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 where it was held that under section 44 of the Evidence Act (now repealed) permits a party to a decision, to show that it was obtained by other party by fraud or collusion or that the Court acted without competence. It was further held that this section does not lay down a mandate that it must be shown in a separate suit and not by moving the same Court or the appellate authority. The rule laid down by the Supreme Court in the case of Abdul Majid (supra) was followed in the case of Asif Jah Siddiqui v. Government of Sindh and others PLD 1983 SC 446.

8. Recently a learned Single Judge of Lahore High Court, Mr. Muhammad Ilyas, J. (as his lordship then was) in the case of Sarwar and 3 others v. Muhammad Saeed‑ud‑Din Khan alias Saadat‑ud‑Din Khan 1992 CLC 2323 held that since the petitioner's predecessor‑in‑interest had challenged the judgment and decree passed m favour of respondent on the ground of fraud and misrepresentation, it was barred by subsection (2) of section 12 of the C.P.C. and that this could be done by making an application under section 12(2) C.P.C. and not by a separate suit. The learned Judge has followed the rule laid down in the cases of Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others PLD 1984 Lah.396). Sardar Bakhsh v. Sahib Khatoon 1988 CLC 2037, Iqbal v. Mst. Jainan Bibi 1991 CLC 553 and the case of Abdul Rauf and others v. Abdur Rehim Khan PLD 1982 Peshawar

172. The facts of the reported case; Sarwar and 3 others (supra) are similar to the facts of the present case. Even this Court in the case of Mst. Rulchsana Ansar and 2 others v. Mst. Raeesa Khatoon 1993 MLD 1319 held that by virtue of newly‑added subsection (2) suit cannot be instituted to challenge the; validity of the judgment, decree or order by a Civil Court on the ground of fraud, misrepresentation or want of jurisdiction and that such remedy can now only be sought by an application to the Court which passed the final judgment, decree or order.

9. The case of Muhammad Ilyas v. Hafiz Abdul Malik and 2 others cited by Mr. Sathi M. Ishaque is of no help to them as in‑the said reported case the impugned order was passed by a learned Rent Controller and it was held by a Single Judge of this Court that the question of fraud as alleged was neither directly nor substantially in issue before the Rent Controller or before the High Court. In the present case, the plaintiffs have alleged frauds which were allegedly committed by the defendants either before filing of the suit or during the proceedings.

10. The plaintiffs are chellenging the judgment and decree passed by the learned Additional District Judge in Civil Appeal No.232/83 through this suit. No doubt, in para. 14 of the plaint they have alleged certain acts of the defendants to support the allegations of fraud and misrepresentation but I am of the view that this suit is not the proper remedy of their grievance and that they should have filed an application under section 12(2), C.P.C. before the Court which has passed final judgment. Mr. Z.U. Ahmed has also raised plea of limitation as the impugned judgment was passed in the month of January, 1983, some ten years before filing of this suit. I would not like to examine this question as I am of the view that this suit is barred under subsection (2) of section 12, C.P.C. and by virtue of Order VII, Rule 11(d), C.P.C. plaint is liable to be rejected. As a result of above discussion, CMA No.2629/94 is granted and the plaint is rejected with no order as to costs. Since CMA No.1049/94 and CMA No.3294/94 have become infructuous as such they also stand dismissed. A.A./F‑5/K Order accordingly.